[Congressional Record Volume 156, Number 153 (Monday, November 29, 2010)]
[Senate]
[Pages S8245-S8246]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN:
  S. 3982. A bill to amend the limitation on liability for certain 
passenger rail accidents or incidents under section 28103 of title 49, 
United States Code, and for other purposes; to the Committee on 
Commerce, Science, and Transportation.
  Mrs. FEINSTEIN. Mr. President, I rise to introduce a bill to raise 
the cap on rail liability in cases of gross negligence. This bill was 
originally introduced in the House of Representatives by Congressman 
Elton Gallegly of the 24th District of California, and I thank him for 
all of his hard work on it.
  When Congress passed the Amtrak Reform and Accountability Act in 
1997, it included a small provision imposing a strict cap on liability 
in railroad crashes. The cap is now contained in 49 U.S.C. Sec.  28103 
and states that the ``aggregate allowable awards to all rail 
passengers, against all defendants, for all claims, including claims 
for punitive damages, arising from a single accident or incident, shall 
not exceed $200,000,000.''
  What this means is that regardless of the circumstances no matter how 
many people are killed or injured in a train crash, and no matter what 
caused the crash total liability for all of the passengers hurt or 
killed in the crash cannot exceed $200 million.
  The problem is that when a real catastrophe occurs, this number is 
just not sufficient and there is no way around it.
  Let me tell you what happened 2 years ago in California.
  On September 12, 2008, a commuter train in Chatsworth, California 
carrying more than 200 people crashed head-on into a freight train.
  The carnage from this crash was unspeakable. Twenty-five people were 
killed. Their bodies, many torn to pieces, had to be extracted from 
heaps of steel and wreckage.
  Another 101 people were injured. Volunteers and rescue crews worked 
that day to help pull them from the wreckage. Emergency response 
agencies transported over 100 people to hospitals. Their injuries 
ranged from blood in the brain and collapsed lungs to bone fractures, 
gashes, and scratches.
  For some people, the crash was a horrible, harrowing experience, but 
they have been able to return to the lives they had before.
  For others, the families of the 25 people who died and for those who 
suffered the most serious of injuries, life will never be the same.
  According to the final report of the National Transportation Safety 
Board, NTSB, no unexpected equipment malfunction or weather problem was 
responsible for this crash.
  The National Transportation Safety Board report states: ``the 
probable cause of the September 12, 2008, collision was the failure of 
the Metrolink engineer to observe and appropriately respond to the red 
signal because he was engaged in text messaging that distracted him 
from his duties.''
  The NTSB found, in other words, that the engineer wasn't paying 
attention, and he sailed through a red signal, crashing head-on into 
the freight train. In fact, the report finds that he was so busy 
texting that he never even hit the brakes.
  According to the report, on the day of the crash, the engineer sent 
21 text messages, received 20 text messages, and made four outgoing 
telephone calls while he was driving the train.
  NTSB wrote,

       the investigation further revealed that this amount of 
     activity was not unusual for this engineer. Wireless records 
     for the 7 days preceding the accident showed that on each 
     workday, the engineer had sent or received text messages or 
     made voice calls during the time he was responsible for 
     operating a train. Two days before the accident, he sent or 
     received about 125 messages during the time he was 
     responsible for operating a train. He had also made phone 
     calls during these periods.

  Astoundingly, the NTSB found that ``the content of all of the 
engineer's text messages over the previous 7 days, including those 
during and outside the times the engineer was responsible for operating 
a train, indicated that the engineer and, a teenage boy, had been 
coordinating to allow, the teenage boy, to operate, Metrolink, train 
111 on the evening of the accident.''
  Although texting while driving the train was clearly prohibited under 
the operating rules of Veolia Transportation, who employed and oversaw 
the engineer under contract with Metrolink, this engineer had been 
violating these ruled habitually and had not been stopped.
  The conductor who worked with the engineer on Metrolink train 111 
observed him using his cell phone while driving the train a month 
before the accident. According to NTSB, ``He said he spoke to the 
engineer about it and he later brought the incident to the attention of 
a supervisor.'' But the behavior obviously continued.
  Bottom line: The report says the engineer wasn't paying attention to 
the passengers' safety, he was sending text messages on his cell phone, 
and no one else took action to stop this dangerous behavior. As a 
result, 25 people died.
  This is unbelievable. And it is unacceptable.
  Since the Chatsworth Crash, I have worked to improve rail safety. In 
October 2008, Congress passed and the President signed the ``Rail 
Safety Improvement Act,'' which included a key provision that I 
strongly pushed requiring

[[Page S8246]]

mandatory collision-avoidance systems on America's major passenger, 
commuter, and freight lines.
  But this $200 million liability cap remains in place.
  That means that under current law, the train operator, Metrolink, and 
the company that hired and oversaw the engineer, Veolia, believe they 
only have to pay $200 million total to all of the victims of the 
Chatsworth crash and their families.
  It doesn't matter how tragic the families' losses were. Or how high 
the survivors' medical bills are. Or how much has been lost in their 
ability to work and care for their families. The cap is $200 million 
total, regardless of the circumstances.
  This is terrible public policy, should never have been adopted, and 
needs to be changed.
  In a large crash involving hundreds of people and very serious 
injuries, a court needs to be able to award the damages that it finds 
are necessary to care for the victims and their families--to pay their 
medical bills and to compensate for wages they will never again be able 
to earn.
  The bill I am introducing is straightforward. It would raise the 
liability cap in any case where a court finds gross negligence or 
willful misconduct to $500 million. And it would do so retroactively to 
ensure that those who were injured or whose family members were killed 
are not unfairly deprived of the benefits of what was really the right 
policy in the first place.
  I understand that the rail industry believes that the cap on damages 
keeps their insurance costs and risk exposure down, and I appreciate 
all the feedback that has been provided by California's passenger rail 
systems.
  I look forward to working with them to make sure this legislation 
will not have any unintended consequences. I do not expect this bill to 
be considered and enacted this week. Facing that reality, I will work 
with the interested parties, including California High Speed Rail 
Authority and CalTrain, to further refine this legislation. There will 
be an opportunity to introduce an improved product as a ``first day 
bill'' in the next Congress.
  But I believe we must do everything we can first to improve safety on 
our rail lines and second to ensure that when the very worst occurs and 
people are injured or lose their lives in these accidents, they and 
their families are fairly compensated.
  I urge my colleagues to work with me to amend this law and raise the 
cap in cases of gross negligence.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3982

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. ACCIDENT LIABILITY.

       (a) Amendments.--Section 28103 of title 49, United States 
     Code, is amended--
       (1) in subsection (a)(2), by striking ``The aggregate'' and 
     inserting ``Except as provided in paragraph (3), the 
     aggregate'';
       (2) by adding at the end of subsection (a) the following:
       ``(3) The liability cap under paragraph (2) shall be 
     $500,000,000 if the accident or incident was proximately 
     caused by gross negligence or willful misconduct of the 
     defendant. Such amount shall be adjusted annually by the 
     Secretary of Transportation to reflect changes in the 
     Consumer Price Index-All Urban Consumers.''; and
       (3) in subsection (c), by striking ``$200,000,000'' and 
     inserting ``$500,000,000''.
       (b) Effective Date.--The amendments made by subsection (a) 
     shall be effective for any passenger rail accident or 
     incident occurring on or after September 12, 2008.
                                 ______