Mark Pestronk
Mark Pestronk

Q: Like many agencies, we sell Amtrak tickets from time to time. A client asked me about Amtrak's liability for delays and cancellations. Suppose a business traveler needs to go from Washington to New York for an important business meeting. If his train is canceled at the last minute or delayed for such a long time that he misses the meeting and loses a big business deal, does Amtrak have any liability? What's the difference, if any, between Amtrak's liability and an airline's liability?

A: Although both Amtrak and the airlines are regulated by the U.S. Department of Transportation (DOT), there is a big difference in the degree of regulation. While the DOT has many rules affecting how airlines must treat passengers, it has none at all for rail passengers, except for those with disabilities.

In the absence of regulations, the relationship between Amtrak and a passenger is governed by contract. You would therefore expect Amtrak's website or its online booking procedure to call attention to any sort of contract of carriage, as the airlines do.

A perusal of Amtrak's website does not reveal any document called a contract or agreement. Further, when you go through the steps to make an online purchase, no contract of carriage is shown or even referred to, although there are a few rules relating to refund requests and the like.

In the absence of an express contract that limits or disclaims liability, a court would hold that there is an implied contract that trains will operate according to their schedules and that Amtrak is liable to your client if he could show that Amtrak could have anticipated that a delay or cancellation could cause a traveler to suffer business losses.

Of course, Amtrak's attorneys would disagree and point to a disclaimer on Amtrak's website that states, "Amtrak's fares, time schedules, equipment, routing, services and information are not guaranteed. ... Amtrak further specifically disclaims liability for any inconvenience, expense or damages, incidental, consequential, punitive, lost profits, loss of business or otherwise, resulting from errors in its timetable, shortages of equipment or due to delayed trains, except when such delay causes a passenger to miss an Amtrak train guaranteed connection. When a guaranteed Amtrak train connection is missed, Amtrak will provide passenger with alternate transportation on Amtrak, another carrier or provide overnight hotel accommodations, at Amtrak's sole discretion, but only when such circumstances resulted from the actions of Amtrak, and this shall constitute Amtrak's sole liability and passenger's sole and exclusive remedy."

However, this disclaimer is buried under several clicks: first, under "Terms of Transportation" and then under "Disclaimer of Liability." Such burial does not satisfy the criteria of "reasonable communicativeness" the Supreme Court and lower federal courts have developed. The "reasonable communicativeness" test requires a purported contract be clearly identified, easily accessible and called to a passenger's attention before a sale becomes nonrefundable. Amtrak's disclaimer fails this test.

Another obscure clause on the website states Amtrak can "in the event of a force majeure event, without notice, cancel, terminate, divert, postpone or delay any train or the right of carriage without liability except to issue a refund." It describes a force majeure as "any condition beyond Amtrak's control ... or any fact not reasonably foreseen, anticipated or predicted by Amtrak."

This clause also fails the reasonable communicativeness test, as it is equally buried. A court should hold that it does not apply, which means that Amtrak cannot disclaim liability for events beyond its control.

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