Res ipsa locomotive

For those of you bored by the legal posts on this blog, you may as well quit reading now. The rest may be interested by the strange aspects of lawsuits involving the Chinese rail system.

In case you that missed it, two trains collided early this morning in a little Chinese town called Zibo, killing at least 60 people, and injuring approximately 400 others, four of them French nationals. The government quickly blamed the crash on human error, in spite of the fact that: (a) the accident involved a century-old section of the Chinese railway system that is scheduled for replacement; ( b) this was not the first crash on this particular line (a train going about 75 m.p.h. killed a bunch of workers doing nighttime maintenance on a different section of the line back in January) and (c) the Chinese railways are known to operate at well beyond their intended capacity. Given the age of the line, prior accidents, other evidence of inadequacies in the system, my mind naturally started wandering to the inevitable lawsuit that will involve the families of the victims.

Any case involving the Chinese train system involves special procedural issues. China actually has a system of railway courts called Railway Transportation Courts (RTCs) that specialize in adjudicating disputes arising on trains. So while plaintiffs typically must lodge complaints in a defendants' home territory under the territorial jurisdiction principle of the PRC Civil Procedure Law (CiPL), CiPL article 28 creates an exception for "tort cases involving human and property losses caused by railway operations and dispatch operations" and article 30 of the 1992 "Opinions of the Supreme People’s Court on Some Issues Concerning the Application of the Civil Procedure Law of the People’s Republic of China," requires RTC to hear such matters.

CiPL article 30 even carves out a special exception for train crashes:

A lawsuit concerning claims for damages caused by a railway...accident shall be under the jurisdiction of the people's court in the place where the accident took place...or where the defendant has his domicile.

And if more than one court has jurisdiction, CiPL article 35 allows the plaintiff to chose which venue to sue in. This means that plaintiffs must make a choice: do they file their bill of complaint in the RTC where the crash occurred and deal with an out-of-the-way court in Shandong Province with judges that in all likelihood lack legal training and probably took a job on the bench as a retirement post after some time in the PLA? Or do they seek to sue the Ministry of Railways in an RTC that will give the M.O.R. the home court advantage? Neither option seems optimal.

Whatever the choice of jurisdiction, the fact that the Ministry of Railways (MOR) is involved adds another layer of complexity. Plaintiffs may have to bring suit against the MOR under the Administrative Procedure Law (APL) of the P.R.C., China's answer to the USA's APA. Article 11 of the APL allows plaintiffs to file "cases where an administrative organ is considered to have infringed upon other rights of the person and of property." And China has a Railway Law which requires that all "railway transport enterprises shall guarantee safe transport of passengers[,]" as well as that

A railway transport enterprise shall be liable to compensation for any personal injury or fatality due to traffic accident or other operational accident. It shall hold no liability for compensation for any personal injury or fatality due to force majeure or due to the fault of the aggrieved person oneself.

(Railway Law art. 58) Moreover,

Any railway worker who neglects his or her duties or violates relevant rules or regulations and thus causes a railway operational accident, or abuses his or her power or seeks personal gains by taking advantage of handling transport transactions, shall be subjected to disciplinary sanctions; if the circumstances are serious enough to constitute a crime, he or she shall be investigated for criminal responsibility in accordance with relevant provisions of the Criminal Law.

The problem for any plaintiffs, however, will be an evidentiary one. CiPL art. 74 requires that:

Under circumstances where there is a likelihood that evidence may be destroyed or lost or difficult to obtain later on, the participants in proceedings may apply to the people's court for the evidence to be preserved. The people's court may also on its own initiative take measures to preserve such evidence.

But article 57 of The Railway Law requires that the MOR should get service back on schedule, lickity-split:

In case of any railway traffic accident, the railway transport enterprise shall act in accordance with relevant provisions about the investigation and handling of accidents stipulated by the State Council and its relevant competent department, and ensure the timely restoration of normal traffic; no unit or individual shall hinder the re-opening of the railway track and train operation.

In other words, any party seeking to prove that something other than pilot error may have caused the accident will probably have some difficulties. That said, however, CiPL article 102 does impose criminal liability for the destruction of "significant evidence." And article 74 of the Supreme Court interpretation mentioned above actually places the burden of proof on the defendant in a "[t]ort action for personal damage caused by highly dangerous operations[.]" So, I think it's fair to say that any cases arising from the Zibo crash will get a bit complicated.