In occasional disagreement with both the United Motor Coach and American Bus Association, I am and have long been a strong supporter and advocate for most policies and activities of both organizations, and still am. But I have been at odds with both organizations over their hours of service policies, for important reasons which, frankly, are irrefutable as a matter of science and logic.
As a forensic expert in the passenger transportation field, there is almost never a time I am not involved, for one party or another, in at least one catastrophic accident’s lawsuit. Driver fatigue is almost always a major component of these accidents, and often a component of many lesser ones.
Hours of Service: Tenets and Non-Tenets
In the simplest of terms, there are two basic aspects of fatigue: (a) how long one works, and (b) how staying awake and alert during this time coincides with one’s sleep-wakefulness cycle. I myself possess a hopelessly long cycle, and if assigned to the proper shift, might make an extremely alert driver. But you do not want someone with my sleep cycle on the road at 9 or 10 am – when a surprising number of catastrophic accidents occur.
The regrettable and unfortunate thing about hours of service requirements is that they focus on only the first aspect of fatigue: How long one has been working (driving or performing other duties). However, certain flexibilities in current regulations bleed over into the other aspect of fatigue, and compromise the alertness characteristics associated with sleep cycles. One huge hole that allows this is the common failure of many operators to count off-duty time within the 15-hour span of service. If one is off duty for, say, six hours, plus on-duty/non-driving for four more, and driving for 11 more, he or can fade in and out of service for 21 hours. Finishing a run under such conditions (unless the driver enjoyed a long, genuine nap), the driver would be completing it at a time when his or her mind and body would normally be sound asleep. Other dangerous and naïve duty cycles – for example where drivers must deadhead at night and begin picking up passengers in the morning – account for a considerable number of catastrophic accidents in the mid-morning period – even though the driver may have not driven for more than 11 hours and is still within the 15-hour spread.
Clearly, the current HOS requirements – as they apply to motorcoach service – fail to reflect the way that the human body functions. If one drives for 8 hours on Monday, starting at midnight, rests for 24 hours. On Tuesday, he or she begins driving again, this time starting at 8 AM, after which he or she enjoys another 24 hours off-duty. On Wednesday, his or her third 88-hour shift that week begins at 4 PM (again, after a 24-hour break). As one can easily see, a driver following this pattern could not sleep during the same hours on all three days. So, as 24-hour creatures, by the 3rd day, the driver would be forced to drive when, just two days before, he or she body had likely been sound asleep (in order to begin Monday’s shift at midnight). Few of us can “invert” our sleep-wakefulness cycles completely within a 72-hour period. Instead, the scenario just cited is an ideal formula for carnage. Yet it is perfectly legal under the American version of HOS regulations for motorcoach operations. Of course our “umbrella groups” and their lobbyists fought with all their might and resources for the right to keep it this way.
Many company policies – including those of some extremely large companies – provide even tougher challenges. In those companies, drivers are sometimes “on call constantly:” If they’ve had 8 hours off-duty, they’re ready to roll. Think about this scenario:
Driver Doe performs an exhausting 4 PM to midnight straight run on Monday, gets home at 2 AM, and sleeps for 10 hours, awakening at noon on Tuesday. He then gets a call that he needs to drive a run that evening beginning at midnight. After all, his new starting time will afford him 22 hours between shifts. The ignorant dispatcher or scheduler contacting him reminds him to “make sure he gets to bed early that afternoon” so that he will be refreshed for his long, Wednesday shift involving a 15-hour spread. Now hold on: The driver had just awakened from a 10-hour sleep. How in the world is he going to go right back to bed to get the sleep he needs for the next marathon about to start that midnight? For most Earthlings, this is almost physically impossible. So instead, the driver stays up from his noon wake-up time, reports to duty at midnight – after being up for 12 hours – and then begins a 15-hour shift, during which time he must drive 11 hours. Unless he napped deeply and undisturbed during much of the remaining four hours, pulling into the destination at the end of the run, he will have been awake for 27 hours – driving at the end of it.
Are we crazy to allow this? Or did the “leaders” of our industry skip arithmetic and science in their elementary and junior high school educations? Yet this pattern is completely in compliance with HOS requirements, and patterns like these course through most motorcoach companies’ shifts and schedules. In hard times, most companies also accept such assignments rather than lay them onto fellow companies or owner-operators whose driver’s sleep cycle is compatible with these shifts. Of course the victims’ attorneys will not employ the word ‘crazy’ (their experts might). Instead, they will use terms like “reckless disregard” and “malicious” – in many states the keys that unlike the magic door to punitive damages.
The Hours of Service provisions still governing the motorcoach industry were enacted in 1937 – and only after considerable debate then. Our chance to update them several years ago, when the trucking industry endorsed and adopted a framework that allows only a three-hour shift in start times from one day to the next, was sabotaged by intensive lobbying efforts aimed at Congress. In the ABA’s case, with funding provided mostly from casinos, museums, amusement parks, shows, and other tourist attractions – venues only interested in filling slot machine chairs with paying bodies – deploying drivers on only safe shifts would weaken their profit margins, particularly as many of these activities run around the clock. Witness this real-life scenario:
In one recent lawsuit in which I was involved, the full coach fares of passengers on an overnighter were completed covered, and double-occupancy rooms provided to them for peanuts, as long as the passengers used their rooms only for showers and changing clothes. With customers’ – labeled with huge, recognizable badges coded by his bus group – it became the driver’s responsibility to make sure that his passenger remained glued to slot machines rather than take any quick snoozes. In fact, in the morning, the driver then transported this dead-on-their-feet entourage to a fancier casino for a few more hours of morning gambling and a low-cost, pig-out brunch, before departing for home. The passengers then collapsed on the coach, and slept like stones. The problem was, of course, that the driver could not only not sleep, but had already been awake for close to 30 hours, and now had to drive the bus five more hours to get home. Tailgating another motorcoach five feet behind it through a construction area on a freeway, a traffic queue forced a quick stoppage, and the driver plowed into the coach in front. The passengers in front were severely injured. But every single passenger behind had his or her feet, legs and/or thighs mangled after the seat anchorages ripped out of the vehicle floor, and twisted and tangled around the passengers’ feet and legs (breaking most of them), and in general, injuring virtually every passenger on board. Somehow, the driver managed to live through this mayhem, although his insurance carrier fared poorly.
Tricks, Traps and Lost Opportunities
Unless the motorcoach community simply does not mind this extent of mayhem, or the negative publicity it typically generates, and as long as occasional pay-outs continue to be less costly than actually arranging intelligent and safe shifts that coincide with our drivers’ sleep-wakefulness cycles (albeit as the cost of losing some business and alienating some spoiled venues who care little or nothing about driver or passenger safety), the way we conduct our business must change. This is particularly important in an era where we will see great change, and bus-dependent riders will likely emerge faster than we can produce vehicles to accommodate them. Were I a vehicle manufacturer, commonly sucked into the same lawsuits, I would be alarmed at this position on the issue taken by the industry and its umbrella organizations, and would demand that changes be made that allowed me to sell as many vehicles as I could squeeze out of my plant’s round-the-clock production capacity without often having to share the liability associated with this misguided deployment.
Transportation and More Transportation
It is impossible to reverse America’s urban form, created by the Defense Highway Act of 1954 and the Home Loan Mortgage Insurance Act that quickly followed it – both the brainchildren of our friends largely in Michigan. Talk about your chickens coming home to roost. Regardless, we cannot hope to change the ratio of our automobiles and pickup trucks to buses, as our European counterparts never had to since they never began with our geographical and political handicaps. But even so, a major part of holding our nation together will be to transition to the degree we can to a public transportation-oriented society.
All this will not be easy if buses are viewed as dangerous modes of transportation, despite how much safer they are than automobiles statistically. Unlike automobile accidents, our accidents are often magnified and exaggerated by the Press and Media. Further, the growth of our flexible bus and motorcoach fleets continues to be adversely affected by the absurd profusion of light rail “new starts” in cities where, frankly, it would be cheaper to buy a new Mercedes for every rider than to spend hundreds of millions of dollars to create tiny light rail system that will serve only a miniscule portion of the population whose origins and destinations happen to coincide with access to stations at both ends of the trip. If you think that USDOT or the legislative branch of our government is capable of creating a network of feeder bus services to support these rail projects, and create the “critical mass” needed to render the entire system affordable, get a grip on yourself.
If change is going to come, it must start by our doing some intelligent things within our own relatively small industry. Modernizing the Hours-of-Service requirements would be a good start, would cost little, and could happen quickly. If we are going to survive in America – forget about fixing it – we had better start doing the things that lie within our power, and go from there.