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Getting Started and Negotiations 29 the STB to resolve the dispute. The host railroad is required to accommodate Amtrak intercity service at avoidable cost. In the case of commuter service, the passenger agency will be expected to contribute its share of total O&M costs. Technical aspects of estimating total O&M costs and sharing these costs between multiple rail corridor users are discussed in Chapter 3. Generally the share of total costs is higher than the incremental increase of O&M costs when passenger service is added. This share is higher because a railroad incurs a number of costs as soon as it is put into service and before any trains run. Examples are basic inspection costs and the cost of vegetation control, which are unre- lated to traffic level and traffic mix. These "fixed" costs are allocated between users on the basis of a corridor-use parameter such as train-miles or ton-miles, depending on which can be most closely linked to the cost. 2.5 The Liability Issue Liability concerns can be a major barrier to the introduction of passenger rail services and one of the most difficult issues to resolve in negotiations. It is also a highly complex subject, where the nature and cost of liability coverage depends on the operator (Amtrak or another operator), state and federal laws that cap liability in different circumstances, and the type of host railroad. A short-line or regional railroad may have very different requirements than a Class 1 freight railroad with "deep pockets." The following is an outline discussion of liability issues. For a more in-depth analysis, the reader is referred to a U.S. Government Accountability Office (GAO) report (Commuter Rail: Many Factors Influence Liability and Indemnity Provisions and Options Exist to Facilitate Negotiations. GAO-09-282, February 2009). Most of the discussion in the following sec- tions and in the GAO report is related to commuter rail operations. Amtrak has long-standing lia- bility and indemnification arrangements with its host freight railroads and is also able to appeal to the STB to resolve disputes. Amtrak intercity services, therefore, face far fewer liability problems than a commuter operation. Note that this Guidebook cannot offer legal advice or advocate policy changes to help com- muter rail agencies with the liability issue. Agencies are strongly advised to retain knowledge- able legal support on this issue and to read the GAO report, which does contain some policy suggestions. 2.5.1 The National Liability Situation and Amtrak Liability limitations for passenger rail operators under current law were enacted as part of the Amtrak Reform and Accountability Act (ARAA) of 1997. The ARAA limits the liability for personal injury to, or death of, a passenger or damage to a passenger's property. This provision, codified at 49 United States Code (U.S.C.) 28103, applies to any passenger rail operation, including all com- muter operators and Amtrak, and is independent of corridor ownership. The statute limits the aggregate allowable awards to all passengers against all defendants for all claims arising from a single accident or incident up to $200 million. It also authorizes passenger rail service providers to enter into contracts to allocate financial responsibility for claims, and it mandates that Amtrak maintain minimum liability insurance coverage of $200 million. Finally, the statute contains lim- itations on punitive damages (clear and convincing evidence of gross negligence is required) and provides that any such damages shall be included within the $200 million maximum. Note that the $200 million limit only applies to passengers and their property, not to railroad employees (to whom Federal Employers Liability Act provisions apply) or to injuries to third parties and other property losses arising from the accident.