Operational Issues for Rail Projects
APTA Legal Affairs Seminar 2008
K&L Gates LLP
What type of share?
no major freight vs. passenger capacity issues
lower insurance cost
don’t have to use FRA-compliant equipment
Must use FRA-compliant equipment
i.e. vehicles that meet FRA safety and crashworthiness
requirements for use on the general railroad system. See 49
Otherwise, secure a waiver from FRA requirements
for use of non-compliant vehicles.
FRA essentially requires temporal separation as part
of the operation plan in Shared Track situations.
Rail Line Capacity
Besides price, the most important issue for freight
railroads is capacity on the line.
Capacity constraints are worse in dense urban
Tension between how many passenger trains public
agency wants to run vs. how many trains freight
railroads need to run.
Commission a capacity analysis.
Freight railroads will want to preserve the right to
run additional freight.
Public agencies need to make sure freight railroads
don’t have the right for future expansion and use up
passenger rail capacity.
Operations and Maintenance
Will you be purchasing the railroad right-of-way?
If NOT, then
Freight railroads may want to drive your passenger trains.
On-time performance issues.
Freight railroads may want to perform maintenance of way.
Public agency can still perform maintenance on passenger
If purchasing railroad right-of-way and track
More likely that public agency will be able to drive
own trains and maintain own property.
Liability and Insurance
“But for” liability protection.
Freight railroads want public agencies to indemnify
them against any and all claims
Arising from grant of access, or
Provision of passenger rail service
Regardless of negligence
That would not have arisen but for the existence of
the passenger rail service.
Public agencies should expect “but for” liability even
if purchasing right-of-way.
How do public agencies manage the risk?
Usually self-insurance + policies
Huge cost item for public agencies
Amtrak Reform and Accountability Act
Federal statute limits rail passenger liability to $200 million per
Clearly applies to Amtrak
Appears to apply to commuter rail
Unclear whether it applies to third party claims
The industry has talked about establishing a
Captive Insurance Pool with other passenger rail
providers for lower premiums.