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Intra-Industry Claims Agreement Arbitration Award No. 8

Duane H. Oltman vs. Burlington Northern Railroad and Western Pacific

  1. Date and Place of Accident and Names of Claimants

    September 30, 1978
    Lincoln, NE
    Duane H. Oltman

  2. Names of Carriers Parties to Arbitration

    Western Pacific Railroad
    Burlington Northern Railroad

  3. Statement of Uncontested Facts with Regard to Accident

    W.P. 68118 originally moved under load from San Jose, CA to Canajoharie, NY via WP-DRGW-MP-BN-CR. After it was made empty at Canajoharie it began moving on a reverse billing empty. On September 28, 1978 the car was interchanged to the Burlington Northern in St. Louis at the request of Western Pacific to the Gooch Mills at Lincoln, NE. On September 30, 1978, Duane Oltman, employed as a laborer by Gooch Mill, was assigned by his employer to prepare WP 68118, which had been delivered as an empty, for loading. He was specifically assigned to sweep the car out prior to loading, and in doing so unlatched the interior bulkhead door which was mounted on a center pivot.

    With center pivot design, when the door is locked in place, the load bearing components are the locking pins in the corners of the door rather than the pivot device. The door is designed so that when it is unlocked, the pins retract into the door and the weight of the door then transfers to the center pivot for support. The bolts which attach the center pivot to this bulkhead door had come loose and had detached from the door because of the configuration of the door and the location where the center pivot was attached, the attachment bolts are not visible to an individual from the floor of the box car. When Oltman unlocked the door to move the bulkhead in connection with sweeping, the pins retracted and since the bolts were not attached to the door, it fell forward striking and pinning him beneath it. He sustained multiple serious injuries which will not be recited since they do not bear on the issues at hand. The matter was settled prior to trial by an aggregate payment of $258,125.00. Burlington Northern and Western Pacific, to facilitate disposition, agreed to share equally in the settlement costs, with each reserving their respective arbitration rights under the IICA.

    It is further undisputed that since the car had not yet been loaded, a waybill had not yet been issued.

    It is further undisputed that car WP 68118 had been on the Western Pacific repair track on two occasions during the ninety day period immediately preceding the date of this accident. In July of 1978, the car was dispatched to a Western Pacific repair facility for exterior door repairs. In August of 1978, Western Pacific forces effectuated repairs to the trucks of the car and at the conclusion of these repairs, the interior of the car was inspected and all interior equipment was reported to be in satisfactory operating condition.

    Burlington Northern and Western Pacific are signatory to the IICA and are CARRIERS pursuant to Rule 1 (d).

  4. Contentions of Carriers

    It is the position of the Burlington Northern Railroad that the Western Pacific and the Union Pacific are synonymous for the purposes of this agreement. It is contended by the Western Pacific that as of the date of this Accident the Missouri Pacific, Union Pacific and Western Pacific had no Corporate connection.

    Burlington Northern further contends that the DEFECT in WP 68118 was of such a nature as to violate Rule 14 either by reason of defective design or a DEFECT which should have been discovered upon reasonable inspection.

    It is the position of the Burlington Northern that the IICA is not applicable in this incident. It is their position that it was acting at the exclusive direction of Western Pacific Railroad in placing the CAR at Gooch Mills. Since the diversion of this CAR to Gooch Mill was at direction of Western Pacific Railroad, and no waybill had yet been issued, the Burlington Northern?s role was limited to that of a SWITCHING CARRIER, with Western Pacific retaining the status of POSSESSING CARRIER pursuant to the provisions of Rule 1 (k) of the IICA. Western Pacific contends that they have no trackage in Nebraska, that they do not interchange with the Burlington Northern at Lincoln, NE and that Burlington Northern would have received the outbound load and hence would have been the ORIGINATING CARRIER.

  5. Findings of Fact

    1. We are in agreement with the uncontested facts as stated in paragraph 3.
    2. We find that under Part 1, of the IICA, there was ACCIDENT as defined Rule 1, (a), and that all conditions in sub-paragraphs 1, 2 and 3 were met.
    3. We find that there was no Corporate connection between the Western Pacific and the Union Pacific as of the date of this ACCIDENT.
    4. We find that there was a DEFECT in WP 68118 as defined in rule 1 (f) of the IICA.
    5. We find no conclusive evidence identifying the ORIGINATING CARRIER as defined by Rule 1 (i) of the IICA, at the time this ACCIDENT occurred.

  6. Findings and Discussion of the Portions of Agreement Applicable to Case

    It is evident to the writers that there was no Corporate connection between the Western Pacific and the Union Pacific Railroads as of the date of this ACCIDENT. That affiliation was not consummated until 1982, and in addition each of the parties referred to herein were separate signatories to the original agreement as evidenced by the AAR signatory list dated April 1, 1979. Therefore, Burlington Northern?s contentions regarding said Corporate affiliations are not germane to the issues before this arbitration panel.

    We find that there was a DEFECT as defined by the agreement at Rule 1 (f), in the subject car, however, Rule 14 (a) speaks to repairs which conceal a DEFECT or which produce a DEFECT and does not make reference to mere non performance. It is our opinion that the word repair should be strictly construed and not expanded to include non performance. There is no evidence in this case to indicate that any repairs were made which would have either produced or concealed a DEFECT. Our position on the restriction of the word repair is substantiated by precedent both in prior arbitration awards and by the discussion in the history of the agreement. Reference is herein made to Award Number 2, Ireland v. Union Pacific, et al, wherein specific reference to repairs and not failure to inspect or discover a DEFECT was the determining factor in ruling that Rule 14 (a) did not apply. In addition, the history of the agreement speaks specifically to repairs and leaves no room for interpretation beyond that point. Finally, on this issue the language of the agreement itself included in Rule 14 (a) specifically refers to repairs and we must be bound by that language. Therefore, we find that Rule 14 (a) does not apply.

    We find that there was a DEFECT in said CAR and that said DEFECT may have been due to design problem as defined in Rule 14 (b). However, since that issue was never submitted to the General Committee, Mechanical Division, Association American railroads, for determination as required Rule 14 (b) we cannot consider same in making our determination.

    In like manner, we feel that there was a DEFECT in the subject car that may have been due to a design or construction problem caused by an OTHER PARTY as defined in Rule 1 (j). However, rule 14 (c) states that COSTS flowing from such accident shall be apportioned in accordance with the terms of this agreement. As the following discussion will make clear COSTS cannot be apportioned under the agreement.

    We find the major problem to resolve in this case is whether or not Burlington Northern was anything more than a SWITCHING CARRIER, as defined by Rule 1 (o) of the IICA, at the time this ACCIDENT occurred. This issue has been previously addressed in Vinsonhaler Arbitration Award No. 6 and in that opinion the final conclusion of the appeal arbitrators was based on the fact that Burlington Northern had implied notice at the time of the ACCIDENT that it would be the ORIGINATING CARRIER. That was evidenced by two documents prepared prior to the ACCIDENT that indicated Burlington Northern would, in fact, be the ORIGINATING CARRIER. On the subject ACCIDENT, we have no documentary evidence as to who would be the ORIGINATING CARRIER nor any conclusive evidence to show Burlington Northern to be anything more than a SWITCHING CARRIER. All of the evidence was post accident and speculative in nature. We do not think the route of the sister car, which was shipped two days after the ACCIDENT, is conclusive evidence as to how the subject CAR would have been routed. Furthermore, the testimony of the Traffic Manager for Gooch Mills described general routing procedures and did not definitively state the route WP 68118 would have taken. Therefore, as stated by the Vinsonhaler Arbitration panel ?at the time the accident occurs, if the initial road haul carrier is unknown, the IICA cannot apply.?

  7. Conclusions

    We find that Rule 14 does not apply to this case and there is no conclusive evidence that the Burlington Northern was anything more than a SWITCHING carrier as defined by Rule 1 (o) of the IICA. Since an ORIGINATING CARRIER cannot be identified, the IICA does not apply.

  8. Distribution of Liability

    Since the IICA does not apply, there is no distribution.

J. E. Dalrymple
Arbitrator

Douglas C. Ruschman
Arbitrator

Roger Schrenk
Arbitrator