Duane H. Oltman vs. Burlington Northern Railroad and Western Pacific
- Date and Place of Accident and Names of Claimants
September 30, 1978
Lincoln, NE
Duane H. Oltman
- Names of Carriers Parties to Arbitration
Western Pacific Railroad
Burlington Northern Railroad
- Statement of Uncontested Facts with Regard to Accident
Car WP 68118 HAD MOVED UNDER LOAD FROM San Jose, CA, to Canajoharie, NY, via WP-DRGW-MP-BN-CR. After being unloaded at destination, the empty car began its return movement via reverse routing. At the request of WP, the car was interchanged to the BN in St. Louis on September 28, 1978, for BN delivery to the Gooch Mill & Elevator at Lincoln, NE.
On September 30, 1978, Duane Oltman, employed as a laborer by Gooch Mill, was assigned by his employer to sweep out the car preparatory to loading. In the course of his work, Oltman sought to move the interior bulkhead door. When he unlocked it, the door fell on him and pinned him beneath it. He suffered multiple serious injuries and later filed a lawsuit for damages.
The involved interior bulkhead door of this car was equipped with retractable locking pins at the corners and was mounted on a center pivot device which supports the weight of the door when it is unlocked. In this case, the bolts securing the door to the pivot had become detached, a condition which is not visible to one viewing from the floor, so that when the door was unlocked it became unsupported and toppled over.
Car WP 68118 had been on WP repair tracks on two occasions during the ninety-day period immediately preceding the accident date. In July 1978 it received exterior door repairs. In August 1978, it received repairs to the trucks, at the conclusion of which the interior of the car was inspected and all interior equipment was reported to be in satisfactory operating condition.
It is undisputed that since the car had not yet been loaded, a waybill had not yet been issued.
In order to facilitate disposition f the lawsuit before trial, BN and WP agreed to share equally in settling it for $258,125 each, reserving its arbitration rights under the IICA.
BN and WP are signatories to the IICA and are CARRIERS pursuant to Rule 1 (d).
- Contentions of Carriers
In its original Position Statement to the Arbitration Panel, BN took position that: (1) the IICA did not apply since the ORIGINATING CARRIER in the MOVEMENT could not be identified because a waybill had not been issued prior to the ACCIDENT; (2) the ?sister car? that was substituted for WP 68118 was routed over the BN and interchanged at Denver to the ?Denver & Rio Grande Railroad? who is not signatory to the IICA and their participation in the MOVEMENT ?would have destroyed the application of the agreement??; (3) BN was acting at the exclusive direction of the WP in delivering the CAR to Gooch Mill thereby limiting BN?s role to that of a SWITCHING CARRIER in the absence of a waybill; (4) rule 14(a) should be applied in that WP?s failure to properly inspect ?produced a concealed DEFECT or concealed a DEFECT causing an ACCIDENT within 90 days after the CAR was placed in service following repair?.?; and (5) for purposes of this arbitration proceeding, WP and Union Pacific System are synonymous.
BN?s Position Statement submitted to the Appeal Arbitration Panel urged the affirmation of the Arbitration Award. BN contended that should the Appeal Arbitration Panel vacate the Arbitration Award, they should find FP the ORIGINATING CARRIER as the CAR was APPROPRIATED by the shipper from WP.
WP contended in their original Position Statement that BN was both the POSSESSING CARRIER and the ORIGINATING CARRIER and that WP and Union Pacific System had no corporate connection on the date of the subject ACCIDENT.
In their Position Statement to the Appeal Arbitration Panel, WP contends: (1) Rule 1 of the IICA applies; (2) BN failed to comply with Rule 7 and, therefore, must be treated as POSSESSING CARARIER and ORIGINATING CARRIER; and (3) Rule 12 should be applied to BN.
- Findings of Fact
The appeal Arbitration Panel finds:
- Paragraph 3 stating the uncontested facts to be correct.
- That under Part 1 of the IICA, there was an ACCIDENT as defined in Rule 1(a) and that all conditions in sub-paragraph 1, 2, and 3 were met.
- That there was no corporate connection between the WP and the Union Pacific Railroad Company on the date the ACCIDENT occurred.
- There was a DEFECT in WP 68118 as defined in Rule 1(f) of the IICA when the ACCIDENT occurred.
- No evidence that BN could have developed routing information of WP 68118.
- No conclusive evidence identifying the ORIGINATING CARRIER as defined in Rule 1(i) of the IICA at the time the ACCIDENT occurred.
- Findings and Discussion of the Portions of Agreement Applicable to Case
The merger of the Union Pacific and WP was not consummated until sometime subsequent to the ACCIDENT that is the subject of this Appeal Arbitration, rendering further deliberation on that issue irrelevant.
We disagree with BN?s position that the framers of Rule 14(a) of the IICA intended this rule to include ?non-performance as well as mal-performance?. Rule 14(a) provides ?When it can be shown that repair of a CAR by a CARRIER produced a concealed DEFECT or concealed a DEFECT causing an ACCIDENT within 90 days after the CAR was placed in service following repair, the CARRIER which released the CAR for service after such repair shall bear full responsibility for COSTS except as provided in Rule 5.? It is clear that the intent of this rule is designed to place responsibility on the CARRIER creating or concealing a DEFECT. If this were not so, the ?full responsibility for COSTS?? of each and every ACCIDENT involving a concealed DEFECT, unless the responsible party could be identified, would fall upon the CARRIER (or CARRIERS?) that happened to have the CAR at their repair facility or their repair track within 90 days of an ACCIDENT.
The primary issue in this case is whether sufficient evidence exists to determine, with reasonable certainty, the POSSESSING CARRIER and THE ORIGINATING CARRIER.
WP argues that the three definitions of MOVEMENT (Rule 1(h)), CAR (Rule 1(c)), and CARRIER (Rule 1(d)) have been met in this case and state ??the question is not does the IICA apply, but can it be applied now in view of BN?s failure to develop sufficient information.?
The problem of applying the IICA is clearly recognized by WP.
Their argument that BN failed to notify the POSSESSION CARRIER pursuant to Rule 7 is unpersuasive absent evidence BN could have identified the POSSESSING CARRIER.
If any CARRIER other than BN received the CAR for shipment (and the evidence indicates the car could have gone to the UP, MP, or the C&NW), then BN would have been the SWITCHING CARRIER and by rule could not have been the POSSESSING CARRIER or the ORIGINATING CARRIER. If it cannot be established which CARRIER would have shipped the CAR, then it follows that BN would be unable to identify the POSSESSING CARRIER and unable to conform with Rule 7. We find no evidence that BN deliberately or carelessly failed to develop routing information.
WP points out that BN must prove it was a SWITCHING CARRIER and not expect to avoid responsibility merely by ?claiming it may have been only a SWITCHING CARRIER.? The fact that BN ?may have been only a SWITCHING CARRIER? requires this Panel to rule that the IICA cannot be applied. Stated another way, the fact that UP, MP, or the C&NW ?may have been? the ORIGINATING CARARIER compels the finding that the IICA cannot be applied.
Any application of the IICA in this case hinges directly and inexorably on the identification of the ORIGINATING CARRIER. During the years of litigation, numerous depositions, and extensive investigation, the ORIGINATING CARRIER has not been identified. It would be sheer speculation and an effrontery to the parties involved for this Panel to attempt to resolve this issue.
- Conclusions
We find the IICA is not applicable in this case.
- Distribution of Liability
The IICA is not applicable; therefore, there shall be no distribution awarded.
Patrick J. Lloyd
Arbitrator/5/23/86
W. Cress
Arbitrator/5/27/86
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