Railroad shipper liability to third parties
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Railroad & Shipper Liability to Third-Parties. Lee A. Miller Kimberly L. Johnson. www.ArthurChapman.com. Lee A. Miller. Kimberly L. Johnson. James F. Mewborn. Duty of Care. Existence of a duty is a question of law is determined by the Court

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Railroad & Shipper Liability to Third-Parties

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Railroad shipper liability to third parties

Railroad & Shipper Liability to Third-Parties

Lee A. Miller

Kimberly L. Johnson


Www arthurchapman com

www.ArthurChapman.com

Midwest Shortline & Regional Railroads Annual Conference


Lee a miller

Lee A. Miller

Midwest Shortline & Regional Railroads Annual Conference


Kimberly l johnson

Kimberly L. Johnson

Midwest Shortline & Regional Railroads Annual Conference


James f mewborn

James F. Mewborn

Midwest Shortline & Regional Railroads Annual Conference


Duty of care

Duty of Care

  • Existence of a duty is a question of law is determined by the Court

  • Duty may be created by contract, statutes and regulations, and by common law

  • Existence of a duty of care is typically based upon specific facts of case, based upon:

    • Knowledge of representatives of the parties

    • Standards in the industry

    • Policies or procedures of the parties

Midwest Shortline & Regional Railroads Annual Conference


Duty of care1

Duty of Care

  • A railroad’s duty of care to Consignees depends upon whether it is an initial/originating carrier, an intermediate/connecting carrier, or a destination/delivery carrier

Midwest Shortline & Regional Railroads Annual Conference


Duty of care2

Duty of Care

  • Initial/Originating Carrier

    • Furnishes the railcar to be loaded

  • Intermediate/Connecting Carrier

    • Receives railcar from another carrier and delivers to subsequent carrier

  • Destination/Delivery Carrier

    • Delivers loaded railcar to consignee

Midwest Shortline & Regional Railroads Annual Conference


Initial originating carrier

Initial/Originating Carrier

  • Usually provides an empty railcar and picks it up when loaded

  • Owes to Consignee and its employees a duty to exercise ordinary care to furnish a car in such condition that it can be loaded and unloaded with reasonable safety

  • Courts typically impose a higher duty to inspect upon carrier providing the railcar

Midwest Shortline & Regional Railroads Annual Conference


Initial originating carrier1

Initial/Originating Carrier

  • Duty requires

    • More than mere “running” inspection (running railcars between two inspectors looking into cars from the ground)

    • Must perform a “reasonable” inspection and must supply a reasonably fit car free of latent defects that present unreasonable risks to the customer and its employees.

    • “Reasonable inspection”—usually a fact question for a jury

Midwest Shortline & Regional Railroads Annual Conference


Connecting and delivery carriers

Connecting and Delivery Carriers

  • Duty to perform reasonable exterior inspection

  • More than just a “casual glance”

  • No duty to discover latent (hidden) defects

  • Duty to remedy or warn of defects

Midwest Shortline & Regional Railroads Annual Conference


Loaded sealed railcars

Loaded & Sealed Railcars

  • Carriers involved only in moving railcar to its destination have no affirmative duty to break the seal to inspect contents to ensure it was properly loaded unless on notice that railcar may not have been properly loaded

    • BUT must perform reasonable exterior inspection

  • Exception: if carrier creates a defect—it has a duty to discover and remedy it

  • Exception: if carrier has knowledge of defect—duty to remedy or warn

Midwest Shortline & Regional Railroads Annual Conference


Loaded but unsealed railcars

Loaded But Unsealed Railcars

  • Duty of carrier depends upon whether defect is visible from a reasonable exterior inspection

  • Originating carrier may have duty to inspect loaded, but unsealed, railcar (concluded by at least one court)

Midwest Shortline & Regional Railroads Annual Conference


Shipper liability

Shipper Liability

  • Duty to exercise reasonable care to load the shipment in a manner reasonably safe for unloading

  • Duty to inspect railcar for defects before loading

Midwest Shortline & Regional Railroads Annual Conference


Shared liability

Shared Liability

  • Possible for shipper, initial/originating carrier, connecting carrier, and destination carrier to all be found negligent for a single injury

Midwest Shortline & Regional Railroads Annual Conference


Duties to third parties

Duties to Third-Parties

  • Duty under FELA: Three methods by which a plaintiff can establish his “employment” with the rail carrier for FELA purposes even while he is nominally employed by another:

    • Borrowed servant of the railroad at the time of his injury;

    • Acting for two masters simultaneously; and

    • Sub-servant of a company that was in turn a servant of the railroad

Midwest Shortline & Regional Railroads Annual Conference


Duties to third parties1

Duties to Third-Parties

  • The test of employment is whether the railroad has control of the employee or the right to control the employee

    • Does not require that a railroad have full supervisory control—only requires that a railroad, through its employees, plays “a significant supervisory role” as to the work of the injured employee

Midwest Shortline & Regional Railroads Annual Conference


Duties to third parties2

Duties to Third-Parties

  • Non-railroad employee has no cause of action against the railroad under the Safety Appliance Act

Midwest Shortline & Regional Railroads Annual Conference


Investigation of third party injury claims

Investigation of Third-Party Injury Claims

  • car number, the shipment date, the identities of the shipper and consignee, and the waybill number

  • railcar history documents: purchase, repairs

  • movement history of railcar

  • shipping agreements

  • side track agreements

  • agreements between railroad and employer of injured third-party

  • post-accident inspection records

  • damage prevention records

  • field manager records pertaining to shipper/consignee

  • shipper records

  • carrier inspection records

  • carrier loading rules and regulations

  • defect reporting guidelines for third-parties

  • witness interviews

Midwest Shortline & Regional Railroads Annual Conference


Railroad shipper liability to third parties

Questions & Answers

Midwest Shortline & Regional Railroads Annual Conference


Railroad shipper liability to third parties1

Railroad & Shipper Liability to Third-Parties

Thank You for Attending!


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