Amicus Curiae Brief — I&M Rail Link v. Northstar Navigation, Inc.

MOTION FILED

JUN 23 2000 ©

No. 99-1904

IN THE

Supreme Court of the Anited States

I & M RAT LINK,

Petitioner,

YN.

NORTHSTAR NAVIGATION, INC.,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Seventh Circuit

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE AND BRIEF OF THE

ASSOCIATION OF AMERICAN RAILROADS AS

AMICUS CURIAE IN SUPPORT OF THE PETITION

LOUIS P. WARCHOT

DANIEL SAPHIRE*

ASSOCIATION OF AMERICAN RAILROADS

50 F Street, N.W.

Washington, D.C. 20001

(202) 639-2505

Counsel for Amicus

June 23, 2000 * Counsel of Record

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

\A Ve

IN THE

Supreme Court of the United States

No. 99-1904

I & M Rat Link,

Petitioner,

Vv.

NORTHSTAR NAVIGATION, INC.,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Seventh Circuit

MOTION OF

THE ASSOCIATION OF AMERICAN RAILROADS

FOR LEAVE TO FILE A BRIEF AMICUS CURIAE

The Association of American Railroads (AAR) respectfully

moves for-permission to file the attached brief amicus curiae.

This motion is filed under Rule 37.2(b). Petitioner has

consented to AAR's filing of a brief.' Respondent has refused

consent.

Amicus curiae Association of American Railroads (AAR)

is an incorporated, nonprofit trade association representing

the nation's major freight railroads and Amtrak. AAR seeks

to file a brief amicus curiae only when the case presents an

' The letter expressing consent has been filed with the Clerk of the

Court.

A

issue of great significance to the railroad industry as a whole-

and in those instances such requests have been granted.”

In this case, the court below has misconstrued a federal

statute, the Truman-Hobbs Act, in a way that will greatly

increase the liability exposure of railroads that own bridges

over navigable waterways. This is a matter of industry-wide

concern because railroads own hundreds of bridges, a

significant number of which are or may be subject to the

Truman-Hobbs Act. Thus, this case does not represent an

isolated event. To the contrary, railroads (and other bridge

owners) can expect to be exposed on a recurring basis to the

additional liability that will flow from the decision below.

Railroads view this case with particular alarm because the

Statute in question was primarily enacted for the purpose of

relieving railroads from a then-existing, unfair financial

burden, not to expose them to a new burden.

When AAR appears before a court as amicus curiae it

brings a broad, industry-wide perspective to the issue. AAR

works closely with its member roads on a host of liability

issues, many of which arise under statutes that have been

enacted to apply uniquely to railroads (e.g., the Federal

Employers’ Liability Act, 45 U.S.C. §§51-60° and the Federal

Railroad Safety Act, 49 U.S.C. §20101 et seq.) or, as in this

case, with the specific concerns of the railroads in mind.

Because, as with the statute at issue here, liability rules

covering the railroad industry often flow from federal laws of

nationwide applicability, judicial interpretations of these rules

* E.g., Consolidated Rail Corp. v. Wicker, 119 S.Ct. 530 (1998); CSX

Transp., Inc. v. Sirbaugh, 117 S. Cv. 1289 (1997); Norfolk & Western Ry.

v. Chittum, 117 S. Ct. 597 (1996); Metro-North Commuter R.R. v.

Buckley, 117 S.Ct. 379-80 (1996). All granting motion of AAR to

participate as amicus curiae.

* Through subsequent legislation, FELA was also made applicable to

the maritime industry. 46 U.S.C. §688.

can impact multiple railroads. As a result, AAR plays a

prominent role in advocating on behalf of the industry in

these matters.

As a trade association representing the nation’s major

railroads, AAR can assist this Court in understanding the

impact of the lower court's ruling, by bringing the perspective

of an entire industry, which often is different from that of the

individual litigant, who may not be in a position fully to be

aware of a case's impact on the industry as a whole. In this

case, AAR has an interest not only in assisting the petitioner

in obtaining relief from an erroneous decision, but also in

assuring that an important federal law is not misconstrued to

the detriment of railroads in the future.

For these reasons, leave to file the attached amicus curiae

brief should be granted.

Respectfully submitted,

LOUIS P. WARCHOT

DANIEL SAPHIRE*

ASSOCIATION OF AMERICAN RAILROADS

50 F Street, N.W.

Washington, D.C. 20001

(202) 639-2505

Counsel for Amicus

June 23, 2000 * Counsel of Record

TABLE OF CONTENTS

THE DECISION BELOW IMPROPERLY

FORCES BRIDGE OWNERS TO SUB-

SIDIZE USERS OF WNAVIGABLE

WATERWAYS, A RESULT DIRECTLY

CONTRARY TO THE PURPOSE OF THE

TRUMAN-HOBBS ACT....c.ccscosccscssscosscscossessnses

A. In Enacting the Truman-Hobbs Act,

Congress Meant to Relieve Bridge Owners

of the Obligation to Finance Bridge

Alterations That Were Designed for the

Benefit of Navigation...............ccccccccssssessesees

B. The Decision Below Improperly Shifts

Responsibility for Allisions from Moving

Vessels to Stationary Objects, Unjustly

Forcing Railroads to Subsidize Their

(i)

ii

TABLE OF AUTHORITIES

CASES Page

I&M Rail Link, LLC v. Northstar Navigation, |

Inc., 198 F.3d 1012 (7™ Cir. 2000.) ....sceccssesseeees 5 eed

Nashville,-C. & St. L. Ry. v. Walters, 294 U.S.

GOS (EG SS) vewiesssviiticnisiiiccesaniiabincistilgiactsiies cn hitaatchaiole 11, 12 |

Norfolk Redev. & Hous. Auth. v. Chesapeake & |

Potomac Tel. Co., 464 U.S. 30 (1983)............0.. 6 |

The Oregon, 158 U.S. 186 (1895)..............:0000 5, 9, 10, 12

The Pennsylvania, 86 U.S. 125 (1873) .............0008 12

United States v. Texas, 507 U.S. 529 (1993).......: : 6

STATUTES

Truman-Hobbs Act, 33 U.S.C. §§511-523............. passim

DS CA... Be he ninintescnsibteitannsintneniaiaditast teeta ama tte 12

33 UA... BP a Oisennisiusins citiibinatiaiees. 7

LEGISLATIVE HISTORY

86 Cong. Rec. 8647 (1940) ......ccccscscsssssccessssssseeens 7 |

86 Cong, Rec. S650: CRDAD) ss sissisiaivsnssistssiinnsincaiovceese 7

86 Coma, Rec, SG5S (RDG sisssccssaiicdosssicicsncsationssess 7,8

86 Cong. Rec. 8654 (1940) oo... cece ceeeeeeesereeeees 8

86 Cong. Rec. 8654-55 (1940).........ccccccccesseeeeseeee 8 i

OTHER AUTHORITIES

Association of American Railroads, Railroad

PCE CEOS WD insccnsessnsuetniiaceiantabasinickatiiacaeaiaticinies 9 |

Association of American Railroads, Railroad |

Ten-Year Trends, 1989-1998 (1999)...........sc0008. w)

Budget of the United States, FY97 .......... eee 9

Congressional Budget Office, Paying for

Highways, Airways and Waterways: How Can

Users Be Coterant? (2992) no. ccescessssnasonvesctunstnnsanes 9

Letter from N.E. Mpras to Michael J. Scotti

(Gna Z,. PAID sisss siniigeiaaniadeaibsathiidatianmauaniae 3, 10

U.S. Army Corps of Engineers, The 1997 Inland

Waterway Review (1997) ..........scccccsssecsscssssseeeees 9

i

IN THE

Supreme Court of the Anited States

No. 99-1904 —

I & M Rat LINK,

Petitioner,

Vv.

NORTHSTAR NAVIGATION, INC.,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Seventh Circuit

BRIEF OF THE ASSOCIATION OF

AMERICAN RAILROADS AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER

STATEMENT OF INTEREST OF AMICUS CURIAE '

Amicus curiae Association of American Railroads (AAR)

is an incorporated, nonprofit trade association representing

the nation's major freight railroads and Amtrak. AAR's

members operate approximately 75 percent of the rail

industry's line haul mileage, produce 93 percent of its freight

' No person or entity other than AAR has made monetary contributions

toward this brief, and no counsel for any party authored this brief in whole

or in part.

2

revenues, and employ 91 percent of rail employees. In

matters of significant interest to its members, AAR frequently

appears before Congress, administrative agencies and the

courts on behalf of the railroad industry.

This case, which arises out of an allision between a marine

vessel and a bridge spanning the upper Mississippi River, has

potentially serious consequences for railroad companies by

virtue of their ownership of numerous bridges over navigable

waterways. As a result of the decision below, whenever such

a bridge has become subject to an “Order to Alter” under the

Truman-Hobbs Act, 33 U.S.C. §§511-523, a long-standing

admiralty rule that favors bridge owners will be eliminated.

The purpose of the Truman-Hobbs Act, a law that provides

federal money to renovate bridges when necessary to aid |

navigation, is to relieve bridge owners from the financial |

obligation to alter their property for the benefit of water

carriers. |The Seventh Circuit has improperly transformed

this law, which was enacted solely to shield bridge owners

from an undue financial burden, into a sword that can be used |

against bridge owners whenever their bridges are struck by a

marine vessel.

AAR members will be directly and adversely impacted by

this decision because they own hundreds of bridges that

traverse navigable waterways in the United States, a

significant number of which are subject to the Truman-Hobbs

Act. For example, the Norfolk Southern Railroad (NS) and

the Burlington Northern Santa Fe Railway (BNSF),

respectively, own 136 and 115 bridges that cross navigable

waterways; 16 NS bridges and 6 BNSF bridges have been

subject to the Truman-Hobbs Act. Union Pacific Railroad,

another large AAR member, owns 62 bridges over navigable

waters, of which 4 have been subject to the Truman-Hobbs

Act, with 3 currently being studied for potential coverage

under the Act. The Illinois Central Railroad and its affiliates

own 12 bridges over navigable waters. Of thirteen bridges

|

Pere e em

3

that are currently subject to a Truman-Hobbs Order to Alter,

nine are owned by railroads.”

The event that gave rise to this case was not an isolated

occurrence. Bridges that have been subject to Truman-Hobbs

orders have been struck hundreds of times by marine vessels

during the past two and a half decades. See Petition at 11.

There is no reason to doubt that these accidents will continue

at a similar clip for the foreseeable future. If the decision

below is allowed to stand, whenever such an event occurs (at

least when occurring within the jurisdiction of the Seventh

Circuit), it will not only be more difficult for the bridge

owner to recover for the damage done to its own property by

the vessel, it also will expose the bridge owner to liability for

the cost of damage to the vessel, hardly the result envisioned

by the 76" Congress when it enacted the Truman-Hobbs Act.

STATEMENT OF THE CASE

AAR adopts the Statement of the Case of petitioner.

SUMMARY OF THE ARGUMENT

The Seventh Circuit's decision in this case misconstrues

the Truman-Hobbs Act, which was enacted by Congress to

provide federal funding for the alteration of bridges over

navigable waters for the purpose of aiding navigation. The

court held that qualification of a bridge fer Truman-Hobbs

funds has the effect of eliminating the century-old

presumption in admiralty that when a moving vessel hits a

stationary object (like a bridge), the moving vessel is at fault.

This ruling is at odds with the purpose and intent of the

? See Letter from N.E. Mpras, Chief, Office of Bridge Administration,

U.S. Coast Guard to Michael J. Scotti (May 2, 2000)(providing

information requested by petitioner from the Coast Guard pursuant to the

Freedom of Information Act (FOIA Information). See Petition at 17.

4

Truman-Hobbs Act, which was to relieve bridge owners, who

are predominantly railroads, from the unfair burden of having

to pay for alterations to their property which aid navigation

rather than the bridge owner. Not only does the legislative

history fail to lend any support to the court’s determination

that the Act was intended to alter a long-standing rule of

liability to the detriment of bridge owners, it makes

abundantly clear that Congress specifically was concerned, as

a matter of fairness, with rectifying an injustice in the existing

law which required bridge owners to pay for such alterations.

It is equally clear that Congress did not perceive the Truman-

Hobbs Act as conferring a benefit on bridge owners (which

might be offset by a burden), as the Act requires the bridge

owner to be responsible for all costs associated with the

alteration which might benefit the owner.

The court’s erroneous reading of the Truman-Hobbs Acct is

particularly troubling to the railroad industry because it has

the effect of forcing railroads to subsidize water carriers, a

competing mode of transportation. Railroad bridges are

frequently hit by marine vessels: in fact, a substantial number

of these allisions involve bridges that have qualified for

Truman-Hobbs funds. In these cases, the bridge owner will

now likely be financially responsible for both the damage

caused to its own property by the vessel, as well as any

damage to the vessel. The unwarranted reversal of a rule of

liability by the court below will lead to payments from

railroads to water carriers as a direct result of the Truman-

Hobbs Act. This decision, which crafts a subsidy of one

mode of transportation by a competing mode, which was

never contemplated nor intended by Congress, should be

reviewed by this Court.

: 5

ARGUMENT

I. THE DECISION BELOW IMPROPERLY

FORCES BRIDGE OWNERS TO SUBSIDIZE

USERS OF NAVIGABLE WATERWAYS, A

RESULT DIRECTLY CONTRARY TO THE

PURPOSE OF THE TRUMAN-HOBBS ACT

In 1940, Congress sought to relieve railroads and other

owners of bridges over navigable water from a “harsh rule”

which forced them to pay for alterations to their property

which provided them with little or no benefit. Sixty years

later, the Seventh Circuit, without direction from Congress,

has devised its own harsh rule of liability that will strongly

encourage bridge owners to bear precisely the costs the

Truman-Hobbs Act was intended to prevent.

The Seventh Circuit speculates that since the Truman-

Hobbs Act grants benefits to bridge owners, it must also

impose burdens. J&M Rail Link, LLC v. Northstar

Navigation, Inc., 198 F.3d 1012, 1015 (7" Cir. 2000)(“[t}he

Truman-Hobbs Act . . . is a complex deal, with some features

making life easier for the proponents and other features

attaching prices.”). This burden, the court of appeals

presumes, is the eradication of the presumption, established

by this Court in The Oregon, 158 U.S. 186 (1895), which

states that when a moving vessel collides with a stationary

object there is a presumption that the stationary object was

not at fault and that the moving vessel caused the accident.

(As petitioner explains, it is a pragmatic, logical and equitable

rule. See Petition at 13-14.) Yet the statutory language and

legislative history are devoid of any support for this notion.

Both the statute and the legislative history make clear that

Congress did not perceive the Truman-Hobbs Act as

conferring a benefit on bridge owners, as the bridge

improvements to be covered by federal money were not for

the benefit of the bridge owner. Thus, any “offsetting”

burden the Seventh Circuit reads into the law is wholly

6

gratuitous. Morever, notwithstanding its views on the

equities, a lower court is not free to offset a putative benefit

(for example, by deeming a common law rule of liability

abrogated) in the absence of a strong indication that it was

Congress’ intent to do so. See Petition at 25.’

A. In Enacting the Truman-Hobbs Act, Congress

- Meant to Relieve Bridge Owners of the

Obligation to Finance Bridge Alterations That

Were Designed for the Benefit of Navigation

Notwithstanding the Seventh Circuit's insistence that it

was merely recognizing an implicit bargain that resulted in

the 1940 legislation, its decision, in fact, upends the

legislative purpose of the Truman-Hobbs Act. As a

consequence of the decision below, the owner of a bridge that

has qualified for Truman-Hobbs funding would be considered

to have created an “unreasonable obstruction to navigation,”

which, in turn, can lead to legal liability whenever such a

bridge is struck by a moving vessel. This flies in the face of

the essential purpose of the Truman-Hobbs Act, which is that

the cost of alteration of bridges, to the extent it is for the

purpose of aiding navigation, is to be borne by the public

rather than by the bridge owner.

Examination of the legislative history of the Truman-

Hobbs Act reveals that the underlying purpose of the

legislation was to relieve bridge owners, frequently railroads,

from the unfairness of the then-existing law. At the time, if

the government ordered alterations be made to a bridge in

order to aid navigation, the owner was required to bear the

full cost. As one supporter of the bill explained, “[t}he

purpose of this bill was to relieve bridge owners of this harsh

rule which requires owners to alter bridges at their own

> United States v. Texas, 507 U.S. 529, 534 (1993); Norfolk Redev. &

Hous. Auth. v. Chesapeake & Potomac Tel. Co., 464 U.S. 30, 35 (1983)

7

expense, whether or not they receive any benefit from the

alteration . . .” 86 Cong. Rec. 8647 (1940)(statement of

Representative Lea).

Virtually every member of Congress who spoke in favor of

the bill echoed this sentiment. Representative Culkin opined

that “I think [the railroads’] rights are definitely and unfairly

invaded under the present law and this legislation offers a

positive cure in the situation.” 86 Cong. Rec. 8650 (1940).

Representative Miller added that the bill “corrects a mistake

that was made years ago... .” Id. Representative Dirksen

noted that “it would be unfair to assess a railroad, for

instance, if they received no benefit.” Jd. Finally,

Representative Crosser explained that the mere fact. that

existing law apportioned burdens on bridge owners far

exceeding the benefits conferred did not justify opposition to

the bill: “If existing law is wrong, that is why it should be

replaced.” Id.‘

Members of Congress went to great lengths to dispel any

notion that the bill would grant a benefit or subsidy to bridge

owners. The bill made the bridge owner responsible for all

costs and expenses that arguably would result in a benefit to

the bridge owner, a feature that remains part of the law. See

33 U.S.C, §516; see also statement of Representative Hobbs.

* President Roosevelt had vetoed the legislation, and numerous

members of his party made the diffieult decision to override the veto in

Onder 10 pass important legislation, grounded in both the national interent

and equity, As Representative Hobbs pleaded with his colleagues:

With the sincerest admiration for our great President, with genuine

regret that agreement with him on this point is impossible, I beg you

to serve national defense, relieve unemployment, be fair to the

railways, and , therefore, pass this perfectly meritorious bill over his

veto.

86 Cong. Rec. 8653 (1940)(emphasis supplied).

8

86 Cong. Rec. 8653 (1940).° It was well understood that

funds that were to be released under the Truman-Hobbs Act

were solely for the purpose of aiding navigation.

Representative Hobbs explained: “Bear in mind: the basis of

the order for the improvement is the needs of navigation.

Therefore, since a perfectly good railroad bridge, adequately

serving railway needs, is to be remodeled solely because of

the needs of the competing carrier, it is manifest that

navigation should be taxed with an equitable share of the

cost.” 86 Cong. Rec. 8654 (1940). Thus, the Seventh

Circuit's premise that bridge owners must be willing to

accept the price that comes with a government subsidy is off

base because the Truman-Hobbs Act simply never has and

still does not provide a subsidy of any kind to bridge owners.

B. The Decision Below Improperly Shifts

Responsibility for Allisions from Moving

Vessels to Stationary Objects, Unjustly Forcing

Railroads to Subsidize Their Competitors

Though Congress was clear that the Truman-Hobbs Act

was adopted to promote faimess, not a subsidy, to bridge

owners, the Seventh Circuit has crafted its own subsidy: in

this case from one mode of transportation to a competing

mode, While trucking companies are the primary Competitors

of railroads, where navigable waterways exist--primarily

along the Mississippi River and the rivers that feed into the

Mississippi-barge lines also compete vigorously with

railroads, particularly for bulk commodities like coal and

grain, which constitute an important part of the railroads’

* “FT }his bill requires that there should be charged up against the

railroad all benefits that flow to the railroad company from the

improvement...” Representative Hobbs added that “the bill is sound,

fair and altogether equitable. It charges every proper element of cost

against the railways which should be borne by them.” 86 Cong. Rec. 8654

(1940).

9

business.° Eliminating the presumption established by The

Oregon grants an unwarranted advantage to water carriers at

the expense of railroads, shifting a balance that already is

tipped in favor of railroad competitors by virtue of the

existing federal subsidy structure.

The rail industry is unique among transportation modes in

that its rights-of-way are not constructed and/or maintained

with public funds. Railroads own the tracks and roadbeds on

which their trains travel, for which they are financially

responsible (and on which they pay property taxes). In 1998

alone, Class I railroads invested nearly $5 billion in their

roadways and structures.’ In contrast, primarily through the

_U.S. Army Corps of Engineers, the nation’s inland waterway

system, which provides the infrastructure of the -barge lines

and other inland water carriers, is built, operated, maintained

and improved with public money.* Around $800 million is

spent annually by the federal government on these functions,

with only about 10 percent being covered by taxes paid by the

commercial users of the waterways.”

While the equity of government aid to the various

components of our nation’s transportation industry is a matter

* In 1998, coal traffic accounted for about 23 percent of rail revenue;

grain traffic accounted for 6.5 percent, Association of American

Railroads, Railroad Ten- Year Trends, 1989-1998 at $1, 54 (1999).

’ Association of American Railroads, Railroad Facts 43 (1999 ed.).

* The federal government also builds and maintains a system of

highways that are used by the trucking induatry; airports and the air traffic

system are largely funded with public money,

* See Congressional Budget Office, Paying for Highways, Airways and

Waterways: How Can Users be Charged’? $3 (1992), While these specific

figures are from the early 1990s, the relationship between federal

spending and user contributions has remained about the same. See C8.

U.S. Army Corps of Engineers, The 1997 Inland Waterway Review

(1997); Budget of the United States, FY 1997,

10

to be taken up by Congress rather than the courts, this Court

should not sit idly by when a lower court has erroneously

exacerbated the existing inequity. Railroad bridges that

traverse navigable waters, though constituting a small portion

of the rights-of-way which the railroads own and maintain,

frequently are damaged in allisions with water carriers.

Moreover, a high proportion of the bridges hit have been

subject to Truman-Hobbs orders. See Petition at 11. While in

some cases the damage is minor, the total cost to repair this

vital railroad property runs into the millions of dollars. Since

it is rare indeed for a bridge to move into the path of an

oncoming vessel, the rule of The Oregon has at least

facilitated the ability of bridge owners to recover their losses.

The ruling below vastly changes the equation. Now,

railroads risk not only losing their ability to be compensated

for the damage done to their property, but also of being found

liable for any damage caused to a moving vessel when that.

vessel fails to avoid hitting the bridge, even though its

position had been fixed, and well known, for many years.'°

Shifting the cost of these accidents from vessel owner to

bridge owner results in a subsidy by railroads paid to their

direct competitor, the water carriers. Moreover, in many

cases, the potential for this subsidy will continue for a long

period of time, as many years may go by between the time an

“Order to Alter” is issued and all the government funding

required to complete the work has been made available by

Congress and released.'' Were this result mandated by the

'® While the bridge owner brought the action in this case, the barge line

filed a counterelaim seeking recovery for the damage to its vessels.

'' See POLA Information. In six of the thirteen pending Truman-Hobbs

projects, the order was isqued prior to 1995. In most of these cases, the

veat majority of the funding is to come from the federal government,

giving the bridge owner litle control over the timing of the project. For

example in the case of one bridge, the order was issued on April I, 1991,

yet as of last month only $1.2 million of $39 million has been made

11

Statute, it might properly be considered a cost of doing

business. However, in enacting Truman-Hobbs, it is clear

that Congress did not intend to give with one hand and take

away with the other.

This Court has looked askance at governmental efforts to

require railroads to subsidize competing transportation

modes. See Nashville, C. & St. L. Ry. v. Walters, 294 U.S.

405 (1935). In that case, the state of Tennessee had ordered a

railroad to construct and pay half the cost of an underpass to

separate grades where a proposed federal aid highway was to

cross the railroad’s main line. This Courtedid not take issue

with the general concept that under the state’s police powers

it could require railroads to fund grade crossing separations.

However, this Court remanded the case ‘to the Tennessee

Supreme Court, because that court had refused to consider

special circumstances which raised serious constitutional

questions about the state’s action.

Of specific significance was the fact that the financial

obligation that was being exacted from the railroad was for

improvements which appeared not to benefit the railroad, but

instead to favor its direct competitors. This Court noted, that

unlike in the past where railroads benefitted from grade

crossing separations, “[t]he effect upon the railroad of

constructing federal aid highways . . . is entirely different.”

Id. at 423. This Court went on to explain the impact on the

railroad:

[federal aid highways] deplete the existing rail traffic

and the revenues of the railroads. Separation of grades

serves to intensify the motor competition and to further

deplete rail traffic. The avoidance thereby made

possible of traffic interruptions incident to crossing at

available by the government, with the project not expected to be

completed until 2003.

12

grade are now of far greater importance to the highway

user than it is to the railroad crossed.

Id. at 423-24. In short, this Court found troubling a scheme

which required a railroad to subsidize the separation of its

lines from the highways when “[p]ractically all vehicles

moving upon [those highways] will directly or indirectly

compete for traffic with the railway.” /d. at 426.

Just as this Court was skeptical about an administrative

decision that forced a railroad to pay for infrastructure

improvements that benefitted its direct competitor, it should

be equally skeptical of a judicial decision that construes the

Truman-Hobbs Act as a mechanism for shifting liability from

water carriers to railroads.‘ Water carriers will no doubt

seize on the ruling below to avoid the rule of The Oregon and

contest efforts by bridge owners to recover for damage to

their bridges. In place of the existing system of resolving

disputes by negotiation, the Seventh Circuit's decision will

lead to increased litigation over the issue of how to allocate

liability. Most assuredly, the court's misuse of the Truman-

Hobbs Act will make more likely a transfer of wealth from

railroads to a competing mode of transportation.'* This Court

should review the decision which is responsible for this

result, never intended nor envisioned by Congress.

'> Representative Hobbs opined that bridge owners had an even

stronger case for relief than did the railroad in Walters. 86 Cong. Rec.

8654-55 (1940).

' The Seventh Circuit asserts that under its holding it will simply be

left to the jury to determine which party was responsible for causing an

allision. However, the court's suggestion that once a Truman-Hobbs

“Order to Alter” has been issued the bridge owner is in violation of 33

U.S.C. §512, may bring into play the rule of The Pennsylvania, 86 U.S.

125 (1873). This presumption against owners of bridges that are in

violation of a statute will greatly increase the likelihood that the bridge

owner will be required to bear at least some of the cost of any allisions.

13

CONCLUSION

For the foregoing reasons, amicus curiae respectfully

submits that the petition for a writ of certiorari to review the

judgment of the Court of Appeals for the Seventh Circuit be

granted.

Respectfully submitted,

LOUIS P. WARCHOT

DANIEL SAPHIRE*

ASSOCIATION OF AMERICAN RAILROADS

50 F Street, N.W.

Washington, D.C. 20001

(202) 639-2505

Counsel for Amicus

June 23, 2000 * Counsel of Record