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AMTRAK WRECK LIABILITY NOT CLOSE TO BEING SETTLED

Aug 29, 1994

National Underwriter

Property & Casualty/Risk & Benefits Management Edition

Amtrak Wreck Liability Not Close To Being Settled

BY ROBERT G. KNOWLES

It's been almost a year since an unlikely series of mishaps resulted in a catastrophic train wreck, hurling Amtrak's "Sunset Limited" express through a damaged CSX Railroad trestle into a muddy backwater of the Mobile River, yet a trial on liability claims is still at least 18 months away, according to attorneys involved in the litigation.

Forty-two passengers and five crew-members were killed, and 103 were injured, early on the morning of Sept. 22, 1993, when three Amtrak locomotives and four railroad cars, travelling about 72 miles an hour, fell into Bayou Canot, near Mobile, Ala. The fuel tanks ruptured and the locomotives caught fire.

Minutes before the train was derailed, the M/V Mauvilla, an 85-foot river towboat that had lost its way in heavy fog, accidentally pushed a heavily-loaded river barge into the bridge.

The collision of the barge with the trestle minutes before the crash displaced a girder by 38 inches and was the principal cause of the train's derailment, according to a draft final report approved on June 21 by the National Transportation Safety Board in Washington.

However, any conclusions of the NTSB investigation about who is at fault for the accident may not be admissible in court, according to Steven Martin, claims manager for the London-based Steamship Mutual Underwriting Association Ltd., an insurance consortium providing protection and indemnity insurance for the owners of the towboat.

Attorneys in Mobile near the site of the disaster have filed claims and counter-claims alleging negligence on the part of the three parties to the accident: the National Railroad Passenger Corp. (Amtrak); the CSX Railroad, in Jacksonville, Fla.; and the Warrior & Gulf Navigation Co., in Chickasaw, Ala., owners of the towboat.

Hundreds of millions of dollars are being sought in lawsuits filed with the U.S. District Court in Mobile, as indemnity awards for the survivors of those killed, and for injured passengers and crew.

The lawsuits also seek repayment of the cost of providing emergency services, removing and repairing or replacing the railroad cars, repairing and restoring the railroad bridge, and restoring rail service to the Port of Mobile by rerouting trains until the trestle was reopened.

Many claims were filed or reopened in March, after attorneys for Warrior & Gulf withdrew a petition that would have limited the liability of the company, which is owned by Transtar, a holding company for U.S. Steel.

Submitted less than a week after the crash, the petition sought to invoke an 1851 U.S. statute that would have held the liability of the towboat owner for the crash to an amount no greater than the value of the towboat and any freight charges due to W&G, according to Mr. Martin, who told the Underwriter he was not surprised by the company's decision to withdraw its petition, which had been scheduled to be heard in Mobile in March. He would not elaborate on why he was not surprised by the petition's withdrawal.

Steamship Mutual members are insured for up to $ 1.01 billion in P&I liability. The Steamship coverage attaches after the first $ 13 million in insured losses have been incurred. Above $ 1.01 billion, losses are reinsured on the London market.

Attorneys representing the survivors and injured, as well as other injured parties, including Amtrak and the CSX Railroad, have filed motions before federal Judge Richard Vollmer, in Mobile, asking that they be allowed to claim punitive damages as well as non-pecuniary damages, according to Greg Breedlove, a partner in Cunningham Bounds Yance Crowder & Brown, a Mobile law firm representing the plaintiffs.

He said in an interview that attorneys for the two sides had agreed to reserve 1995 for completion of the pretrial discovery process, with trial set for early in 1996.

The NTSB report found that the M/V Mauvilla lacked a compass and navigation charts, and that the vessel's second officer, who was steering the vessel when the collision occurred, had not been trained in use of its radar.

Mr. Breedlove said defense attorneys for Warrior & Gulf already had admitted negligence in their answers to motions for discovery.

However, officers of the 23-year-old river towboat had steered the vessel pushing loaded barges up and down the Alabama and Black Warrior rivers and their tributaries twice a day without any accidents, according to George Nelson, Houston press representative for Warrior & Gulf.

Broox Holmes Sr., a Mobile attorney representing the defense, said in an interview that counter- claims have been filed against the CSX Railroad, alleging failure to display warning lights and radar reflectors on the trestle over Big Canot Bayou, and against Amtrak, alleging negligent operation of the train and failure to provide crashworthy rail cars. Mr. Holmes is a senior partner at Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves.

Mr. Breedlove said attorneys for the two sides were working against a two-year statute of limitations, and not all of the surviving families and injured parties have yet filed claims.

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