[Congressional Record Volume 142, Number 22 (Friday, February 23, 1996)]
[Senate]
[Pages S1290-S1291]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         AMTRAK REAUTHORIZATION

  Mr. BREAUX. Mr. President, I take this time to comment on legislation 
that has been reported out of the Senate Commerce Committee 
reauthorizing the Amtrak rail system in this country and also 
instituting not just a reauthorization but as well an effort to try to 
bring about major reforms to the Amtrak passenger rail system in this 
country.
  Let me say that the committee worked long and hard. The distinguished 
Presiding Officer is a member of the Senate Commerce Committee that 
worked on that legislation. It is apparent that I have expressed some 
public concerns about bringing this piece of legislation to the floor 
of the Senate under a unanimous consent arrangement to be handled in 
the Senate without the possibility of any amendments--indeed, without 
any discussion, just bring it up under a unanimous-consent procedure 
and then pass it and send it on to the other body, over to the House 
side. I have objected to that procedure because I think this, indeed, 
is a subject that needs to be discussed and debated in this Chamber.
  Let me start by first saying that I very strongly support the concept 
of and the need for Amtrak reauthorization. The passenger rail system 
provides incredible economic assistance and transportation to 
industries and individuals in this country. Indeed, our entire rail 
system in this country is second to no other country. We can be proud 
of what Amtrak has brought in terms of passenger service to this 
country, as well as the freight and private carriers, and the good 
economic possibilities that they make happen every day by having this 
national transportation system of railroads in our country. All our 
industries and our businesses and our individual lives are touched 
every day by having such a fine rail system. I think by and large the 
various private companies do an outstanding job in maintaining their 
level of providing these services as well as doing their best to 
provide quality services in a safe manner so that everybody who uses 
the rail system can be assured of their safety.
  The concern that I have--a concern we need to have this Senate body 
debate and discuss--is making sure that we do not do anything in this 
legislation to lessen the requirements of these private companies and, 
indeed, our public Amtrak system in the standards of safety that they 
must provide to the American public.
  We all have witnessed this month a set of accidents around this 
country that I think are very disturbing, to say the least. Look at the 
headlines that have appeared in newspapers just in the month of 
February. February 2, 1996: ``Two Killed, 20 Hurt in California Train 
Derailment.'' On February 10, this year: ``Three Die in New Jersey 
Transit Commuter Train Wreck.'' February 16, again, this month, the 
third such incident: ``Brake Failure Causes Yet Another Train Wreck--9 
Workers Injured, FBI Called In To Probe.'' And, of course, one that we 
are very familiar with in this area, on February 17: ``MARC-Amtrak 
Trains Collide Killing 12.'' And then the fifth such accident, on 
February 22: ``Colorado Train Derails, 2 Killed, Acid Spills.''

  Mr. President, I say to all of our colleague who may be listening and 
to the American public that these five major train accidents that 
occurred in a 1-month period are disturbing to me, disturbing to my 
colleagues and, I think, indeed disturbing to the American public. They 
want to know that the trains they ride on, the trains that carry the 
goods and services of this Nation are safe, they can be counted on and 
that they are dependable.
  Again, I will point out that I have a great deal of respect for all 
of these private companies. They are attempting to do a good job. The 
concern I have right now and the reason I objected to bringing the 
Amtrak reauthorization legislation to this body without the ability of 
any discussion, under a unanimous consent agreement that prevents any 
ability to offer amendments to that legislation, is because I think 
there is a real possibility that some would like to further restrict 
individuals' rights to be compensated when rail accidents occur. When 
you have five in 1 month, Mr. President, I think we need to look at how 
these railroads are operating, how we can help them do a better job, 
and, yes, at the same time make sure that people who are injured by 
accidents where negligence was the cause of that accident are 
adequately compensated, and, yes, even to the point of providing 
punitive damages when gross negligence occurs and is the proven cause 
of that particular accident.
  Now, the reason I bring up these concerns to the Senate today is 
because of the provisions that are in the bill that has already passed 
the House of Representatives and what they attempt to do to the 
American public in the area of safety and the ability to be 
compensated. Two things leap out that I am very concerned about, and 
some of these features are in the Senate bill.
  First, there is a cap on punitive damages in the House-passed bill. 
In other words, if a railroad is found to be grossly negligent, almost 
to the point of saying: ``We don't care what happens. If you get hit, 
we will pay the damages; we don't care.'' And I am not saying anybody 
fits in that category. It is very rare that punitive damages are 
awarded. But when they are awarded, it is to say to the defendant who 
has been grossly negligent, ``We are going to penalize you so you don't 
do it again. Do not think it is easier to pay the damages than to fix 
the problem.''
  The House bill puts a cap on the punitive damages that can be awarded 
instead of letting a jury or a judge determine, after seeing the facts, 
what it should be. The Senate bill has a similar provision that puts a 
cap on punitive damages as well; in other words, restricting how much 
someone can be penalized by a judge and a jury for causing an accident 
where gross negligence has been proven beyond a doubt.
  That I think is simply wrong. We should not be moving in that 
direction. We should allow punitive damages to be assessed on those 
rare occasions when they need to be, as a form of saying to a 
corporation or an individual, ``Do not do that again. If you do, you 
are going to be severely penalized.'' That is an incentive to do a 
better job. That is an incentive to make things safer. That is an 
incentive to do more inspections and to make sure things work the way 
the American public has come to depend on their working.
  The second thing I am concerned about is that there is a cap in the 
House-passed bill on the Amtrak reauthorization on limiting how much a 
person can recover for pain and suffering in an injury from a rail 
accident. How do we in Congress, sitting in Washington, DC, where we 
have not been out to interview a family or not heard testimony of those 
who have lost a member of their family or been disfigured or lost the 
ability to have any income in the future because of the injuries, how 
do we in Washington pick a number and say this is the maximum amount 
they can receive for pain and suffering as a result of the negligence 
of someone that has injured them?
  How can we in Washington, who have never seen the injured people, 
never heard their testimony in a trial, never viewed that testimony 
firsthand, pick a number and say this is a fair number in every case 
that ever happens in America? How many of us in this body or the other 
body have interviewed any of the people injured in five train wrecks 
all over the country just this month?
  How can we say that x amount of money is a cap that can never be 
exceeded? That is not a function of the U.S. Senate. Those numbers and 
those amounts for pain and suffering, when someone is severely injured, 
can best be decided, I think, by juries and by courts and by judges 
who, in a public forum, have listened to the witnesses, seen their 
injuries, heard expert testimony about how bad they are injured. Maybe 
for the rest of their lives they are going to suffer those same 
injuries. Let them decide what is an adequate amount for compensation.
  The third concern that I have, which is probably the biggest concern, 
is something that I just do not understand and, quite frankly, I think 
was a terrible mistake on the part of the other body when they passed 
this legislation. It is called indemnification. I will just read it and 
then I will attempt to try to explain it, because we write 

[[Page S1291]]
laws sometimes that nobody can ever understand unless they put it in 
English. Sometimes I think we write in foreign languages.
  The House bill says:

       Indemnification Obligations--

  This is in title IV of the House-passed bill. It says:

     Obligations of any party, however arising, including 
     obligations arising under leases or contracts or pursuant to 
     orders of an administrative agency, to indemnify against 
     damages or liability for personal injury, death, or damage to 
     property described in subsection (a), incurred after the date 
     of the enactment of Amtrak Reform and Privatization Act of 
     1995, shall be enforceable, notwithstanding any other 
     statutory or common law or public policy, or the nature of 
     the conduct giving rise to the damages or liability.

  If you read that the first time, your eyes glaze over. Certainly mine 
do. And I say, ``What did he say?'' It sounds convoluted and like it 
was written by a lawyer. Yes, it probably was.
  What that section that is in the House-passed bill simply says--and 
one of my biggest fears is that the Senate may agree to it in a 
conference--it says as simply as I can put it, if a private railroad 
that owns the track and owns the signals and has not kept them up, has 
completely ignored conditions or put in the wrong signals or has their 
own train that is running on their own tracks, when the engineer is 
grossly negligent, who is maybe intoxicated or under the influence of 
drugs, is running their train, that if all those things occur, and it 
runs into an Amtrak train and, heaven forbid, kills passengers on that 
Amtrak train, that this section specifically says that the private 
railroads can have an indemnification agreement that absolves them of 
any responsibility, absolves them of any liability no matter how 
negligent they were, and they can shift that liability to Amtrak and 
say that the American taxpayer, who happens to fund Amtrak, is going to 
have to pay for the damages, pay for pain and suffering, pay for the 
damages to the community, the damages that are caused by that wreck, 
even though it was completely and totally the fault of the private 
railroad.
  I suggest to my colleagues that it is not good public policy to allow 
a private industry to shift the responsibility and the liability for 
their negligence, no matter how bad it is, their gross negligence, to 
shift that responsibility to somebody else--in this case the American 
taxpayer--that it is not right. It is not good public policy. In fact, 
it is very bad public policy.
  Under that section of the House-passed bill, when we go to 
conference, if it were somehow to be incorporated into the final 
package and passed into law, every private railroad would say, ``Look, 
I have much less of an incentive to do the right thing because if we 
have an accident that involves an Amtrak train,'' which many of these 
that I just cited have, ``I'm not going to be responsible.''
  I just think it makes no sense whatsoever from the standpoint of any 
standard of public policy to say that we should allow indemnification 
agreements to allow someone to shift their responsibility, even when 
they are grossly negligent, to some other party and say, ``You take it. 
You take my responsibility. You take my responsibility for the pain, 
for the damages that my negligence caused,'' and particularly in this 
case when it is the Federal taxpayer, because we in this authorization 
are funding Amtrak.
  When we fund Amtrak, the taxpayers are paying for Amtrak. So why 
should the taxpayer be paying for the gross negligence of some private 
industry when it is their fault that the accident occurred? I think we 
have to look at this very carefully. We have to reject it if it comes 
back. It is not part of the Senate bill, but it is part of the House-
passed bill, along with the caps on punitive damages, along with the 
caps on pain and suffering.
  If there ever was a time when we should be more careful about 
protecting the rights of injured people and more careful about ensuring 
mechanisms in our laws that provide incentives and inducements for both 
public bodies and public railroads and private railroads to do a better 
job, now is the time.
  I cannot imagine someone standing up on the floor at this critical 
time and suggesting that what we ought to do is make it harder and more 
difficult for people who are injured in rail accidents to be justly 
compensated. I cannot imagine anybody at this critical time coming to 
the floor of the House or the Senate and suggesting that private 
railroads should be able to shirk their legal responsibility for gross 
negligence, if and when it occurs, onto the backs of the American 
taxpayer instead of standing up and saying, ``Yes, we were responsible. 
Yes, we have to pay. Yes, we are going to correct this problem.''
  That is the issue, as simply as I can possibly state it, that we are 
going to be facing when this legislation comes to the floor. That is 
the reason that I have said time and again, do not bring this to the 
floor under a unanimous-consent agreement. Do not tie the hands of 
Members of Congress in our ability to talk about this. Do not prevent 
us from being able to offer amendments to correct these problems so 
that we do not make a very serious mistake with this legislation when 
it comes to the floor.
  We should have the opportunity to improve it, to correct it, to amend 
it. And if we can work out that type of structure, I am looking forward 
to the debate with my colleagues in the Senate and, ultimately, 
hopefully, in a conference with the House.
  Mr. President, I yield the floor.
  Mr. DORGAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, we are in morning business; is that 
correct?
  The PRESIDING OFFICER. That is correct.

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