Rail Boom

A renaissance in train transportation is underway in Canada. Once the predominant means of moving goods and people, rail fell on hard times with the rising popularity of cars, trucks and airplanes during the 20th century. However, over the past decade, railways have flourished, thanks to their relative fuel efficiency and low emissions compared to other types of surface transportation.

But while rail is increasing in popularity, so too is the risk of a potential accident. And rail accidents do present their own peculiar challenges for adjusters investigating a rail claim.

RAIL RENAISSANCE

The Railway Association of Canada (RAC) represents virtually all railways in Canada — from national carriers to regional, inter-city, commuter and tourist lines. According to RAC’s 2007 Railway Trends publication, the industry’s revenues increased by more than 37% from 1997 to 2006, with freight being the largest contributor. Because the Canadian and American rail systems are fully integrated, shipping to and from the United States played a large part in this expansion.

Whether goods originate offshore, in the United States or in Canada, however, the environmental impact of transporting them is a growing concern.

“Rail moves a tonne of freight 168 kilometres on just one litre of fuel,” said Mike Lowenger, RAC’s vice president of operations and regulatory affairs, in the Globe and Mail supplement. “By comparison, a truck uses as much as six times more energy.” Rail also produces lower emissions. Despite transporting 4.3 million carloads of freight and containers as well as 65 million passengers every year, trains generate only three per cent of surface transport emissions, according to RAC.

POTENTIAL FOR DISASTER

While rail offers many benefits, the danger of accidents is significant. These heavy projectiles travel at high speeds through densely populated areas or pristine natural environments; accidents can be catastrophic, especially when they involve toxic cargo. Probably the best-known disaster is the 1979 Mississauga train derailment, when a 106-car freight train carrying propane, styrene, toluene, caustic soda and chlorine went off the tracks and exploded. Facing the prospect of a cloud of deadly chlorine gas, authorities evacuated 200,000 people, the largest peacetime evacuation in North America before Hurricane Katrina.

According to the Transportation Safety Board of Canada, the total number of reported rail accidents was 1,282 in 2007, down from 1,378 in 2006 but up from 1,247 in 2005. These figures represent all occurrences from minor to serious, but there were 86 fatalities and 54 serious injuries in 2007 alone. Also in that year, there were eight main track collisions, 156 main track derailments, 27 fires or explosions and 209 accidents at crossings.

The no-fault insurance system of the auto and trucking sector does not apply to railways, so establishing liability can be crucial in the event of an accident. If one party suffered damages, it can recover from the at-fault party.

REGULATORY OVERSIGHT

Railways with inter-provincial or Canada-U. S. operations, such as CN, CP and VIA, are regulated by federal law. Others operating entirely within a single province are governed by provincial laws. In the 1990s, many new intraprovincial, short-line freight railways came into existence as CN and CP sold off their smaller operations.

The 1989 Railway Safety Act (RSA) is the most important federal statute regulating railways. It gives responsibility to Transport Canada for overseeing railway safety, separating this role from those of the Canadian Transportation Agency (responsible for economic regulation and dispute resolution) and the Transportation Safety Board, which performs accident investigations.

Most provinces have incorporated some or all aspects of the RSA into their own legislation, ensuring that the same rules apply to provincial railways. Under the RSA, railway companies must be responsible and accountable for the safety of their own operations, while the regulator must retain the power to protect people, property and the environment by ensuring that the railways operate safely within a national framework.

Amendments in 1999 added the objective of environmental protection, requiring railways to implement safety management systems. As part of this change, the primary emphasis of Transport Canada related to compliance monitoring moved from detailed technical inspections to auditing the implementation of company safety management systems.

This shift places much of the onus for safety on the industry by mandating that every company must develop and implement a safety plan. Furthermore, each employee in any service connected with movements, handling of main track switches and protection of track work must carry a copy of the Canadian Rail Operating Rules and pass a test on these rules at least every three years. This 100-plus-page book outlines every detail of railway operation.

ACCIDENT INVESTIGATION

The police, whether local, provincial or RCMP, are normally among the first officials to arrive at the site. Their initial responsibilities are to ensure the safety of people and property, secure the site and document evidence. If an accident involves fatalities, a representative of the provincial or territorial coroner or a medical examiner is sent to the site. The coroner’s responsibilities include conducting autopsies where necessary and determining the cause of death.

When a serious rail accident occurs, the Transportation Safety Board (TSB) may choose to investigate the incident to determine cause and contributing factors, and may release a report. The TSB also maintains an accident reporting system for all modes of transportation to aid in analysis.

The TSB will be provided with a report of an incident from the involved railway, and in some cases this may be the extent of their investigation. The TSB is more likely to conduct an independent investigation if a matter of public safety is involved.

On occasion, there may be other organizations present at accident sites. For example, officials from Environment Canada and their provincial counterparts may be on hand to help determine the presence of, or to contain, any environmental damage.

Because of the importance of establishing liability, adjusters are also called in to investigate — especially if an incident involves a collision with another train on the tracks or a car, truck or pedestrian at a crossing.

The national railways usually have their own in-house departments, but the smaller operations often use independent adjusters.

The complexities of rail accidents require a thorough and well-documented investigation:

• Create scale drawings, take photographs and record precise measurements. If, as is often the case, a level crossing is involved, diagram the road and track configuration.

• Check the presence and operation of warning devices. Are there lights and/or gates? The lights are tested on a regular basis, so obtain records from the railway’s signals and communications department. Sometimes a “signal bungalow” is on site, and it may contain a recorder that can produce a printout of the signals’ operation.

• Obtain the railway’s operating timetable, which indicates how fast the train should be travelling throughout its journey and provides special instructions that may be required for specific stretches of track.

• Confirm whether the operators were following the operating timetable correctly by obtaining information from the train’s event recorder. These “black boxes” are similar to those used on airplanes and in many new cars. The devices used on trains don’t record conversations, but they do record track speed, distance, time, brake-pipe pressure, brake activation time and throttle position. They also indicate whether the headlight was on and whether and when the eng ine whistle and the bell were being sounded.

• When potentially dangerous loads are involved, get a copy of the shipper’s material safety data sheet to determine the exact nature of the cargo.

• Ascertain whether the engineer and conductor have passed the appropriate medical tests and have up-to-date certification on the Canadian Rail Operating Rules.

• Interview the train operators to learn how the train was working and gain their perception of how the trip was going. Interview other involved parties, bystanders and people living in the vicinity.

• Obtain a copy of the police report, the TSB report (if one is produced), the coroner’s report in the case of fatalities, and any other documentation available from public authorities.

• In the case of a derailment not caused by a collision, review the configuration of cars, the state of wheels and tracks, the condition of the surrounding terrain and recent weather conditions.”