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Groups sue railroad over chlorine cargo

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  • Groups sue railroad over chlorine cargo

    Shippers say they shouldn't have to indemnify railroad for its mistakes

    By Judy Fahys
    The Salt Lake Tribune
    Updated: 07/02/2009 2227HRS MDT

    Should the Union Pacific Railroad be responsible for the safety of chlorine tankers it's hauling around the nation? Or, should the shippers, like US Magnesium, be liable?

    That's the heart of the question put to a Utah federal court this week in the latest round of the fight between the chlorine industry and the railroad.

    The Chlorine Institute and the American Chemistry Council, trade groups, filed suit Monday in the U.S. District Court for Utah to block a new provision in Union Pacific's rate card that would shift liability to the shippers, even if an accident occurs because of the railroad's mistake.

    Fred Millar, a Virginia-based rail safety activist, calls the ongoing fight "outrageous." More than 100,000 tankers of chlorine gas and ammonia travel the rails each year, he said, putting millions of Americans within reach of potentially deadly accident plumes.

    "The railroads," he said, "are playing chicken with the American public." And they should be required to reroute hazardous shipments like these around populated areas.

    The fight between Union Pacific and the chlorine industry emerged earlier this year. The railroad framed it as a safety issue, telling the federal Surface Transportation Board in Washington, D.C., that it should be released from its duty as a "common carrier" to haul chlorine from US Magnesium's processing plant in Rowley, on the western shore of the Great Salt Lake, to customers throughout the United States.

    On June 11, the board ruled against the railroad. In the meantime, Union Pacific changed its "tariff," or public rate list of costs and services, to include a provision that makes the shipper responsible for losses, damages and other liabilities even when the railroad is at fault.

    That's what prompted the chlorine industry's suit against the nation's largest rail freight company, said attorney Paul M. Donovan. Chlorine shippers don't have other options for transporting their products.

    FELA FELLA Comment: It seems pretty simple to me that if any carrier accepts the job of transporting hazardous substances, they should be liable for injuries they cause that is due to their negligence. Remember, we are talking about negligence. Not all accidents are a result of negligence. In fact, in every jurisdiction I have seen, the term "unavoidable accident" is defined as an accident that occurs not from an act or omission that arises to negligence of any party to it. In some jurisdictions the trier of fact is either instructed on this if requested and supported by the evidence or a question is submitted to the trier of fact on was the occurance an "unavoidable accident". Short of being an unavoidable accident, if the carrier is negligent and that negligence is a proximate cause of a person's injuries, the carrier should pay compensable damages. The "rate card" language UP devised is like a shell game on the part of UP. UP, nor any other carrier for that matter, does not have to accept the cargo but they want the money. Route changes are not the total panacea but perhaps not doing it, considering the immeasurable potential harm IF something happens, may be, in my opinion, negligence in itself.

    Steve Gordon
    Utah FELA/Railroad Worker Injury Lawyer | Salt Lake City Attorney | Provo UT Ogden Train Accident
    Steve Gordon
    Gordon, Elias & Seely, L.L.P.
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