Intra-Industry Claims Agreement Arbitration Award No. 5
Gary Stewart vs. Norfolk & Western Railway Company
The Norfolk and Western Railway Company has requested arbitration in the case of Gary Stewart vs. Norfolk and Western Railway Company, pursuant to Rule 33 of the Intra-Industry Claims Agreement.
The accident occurred on 28 December, 1976, on the premises of the Edgewater Steel Company, Oakmont, Pennsylvania, as a result of which the industry's employee, Gary F. Stewart, suffered a serious injury to his left leg. Mr. Stewart was in his early 20's, married, with one child. Stewart was riding the front ladder on the leading end of a string of several cars, which were being moved by a switching locomotive of the Edgewater Steel Company and, at the time of the accident, the cars had been detached from the locomotive and were running free through a curve on a track of Edgewater Steel company and, when coming out of the curve, Stewart saw an electromagnet suspended above the track a short distance ahead. The electromagnet was owned by the Edgewater Steel Company. Stewart endeavored to climb the ladder, on which he had been standing, but was unable to get clear and his left leg was crushed between the end of the car on which he was riding and the electromagnet. Stewart advised he did not alight from the car when he saw the electromagnet, as he might have been run over.
On 28 December, 1978, suit was filed against the Norfolk & Western Railway Company and this was apparently the first time any Railway had knowledge of the accident. The Norfolk & Western conducted enquiries and ascertained that car NW 99592 had been placed by the Union Railroad Company for loading by Tube City Iron and Metal and handled by the Union Railroad Company in switching service and interchanged to Conrail, who delivered the car to Edgewater Steel Company, at Oakmont, Pennsylvania. The only two Carriers to handle the car were the Union Railroad Company and Conrail. The Union Railroad Company only received a Switching fee at point of Origin and, therefore, was not an Originating Carrier.
Conrail was the only Roadhaul Carrier in the movement and, therefore, was the only Possessing Carrier.
The complaint served on the Norfolk & Western Railway Company alleged, among other things, that the Norfolk and Western failed to provide additional footholds and/or handholds on the front of the car, such that the Plaintiff could have moved laterally to avoid the accident. Subsequent information, furnished by the Plaintiff, indicated the Plaintiff's case was based primarily on an alleged defect in the design of the car in that it did not contain a walkway and handhold across the front of the car that could have been utilized by Stewart to avoid the accident.
It was determined car NW 99592 was manufactured by the Norfolk & Western Railway Company in July, 1972, and placed in service at that time. There were apparently no modifications to the car between that time and the date of the accident. The design and manufacture of the car conformed to all Federal and AAR regulations. It was determined the car had not been involved in an accident after being interchanged to Conrail by the Union Railroad Company.
After ascertaining the Plaintiff alleged his injury was due to defective design of the car, Norfolk & Western requested Conrail assume the carriage of the case under the terms of the Intra-Industry Claims Agreement. Conrail refused and Norfolk & Western, who were the only Defendants, carried on with the Defense and subsequently settled the Action for $50,000.00. In addition, they expended the sum of $27,725.00 Attorney's fees and $2,637.60 legal costs and requested reimbursement of the total amount, $80,362.60 from Conrail and Conrail declined payment.
It is the position of Norfolk & Western that the Intra-Industry Claims Agreement is applicable, as the circumstances conformed to all the conditions of Part I, Rules 1(a) and (f), and Conrail was the Possessing Carrier at the time, and that under Rule 17, Conrail must bear all costs arising from the accident. It is the position of Conrail that the Intra-Industry Claims Agreement does not apply, as neither the drafters of the Agreement, nor the Agreement itself, ever contemplated or intended that a Carrier would indemnify another Carrier for alleged defective construction or design of a car where no such defect existed and, further, there is no rule in the Agreement to cover the situation at issue.
It is the position of the Union Railroad Company that it was a Switching Carrier at Origin and has no responsibility in this case.
Findings
On the facts, only two Carriers handled this car, the Union Railroad Company and Conrail, and both are signatories to the IICA.
Rule 1(a)(1) has been satisfied, as there was personal injury to an "other party".
I also find Rule 1(a)(2) has been satisfied, as the car was not in transit at the time of the occurrence. The car was being moved by employees of the consignee when the accident occurred and was not being relocated by a Carrier or Railroad as set out in Rule 1(g).
The entire case rests on rules 1(a)(3) and1(f), as to whether or not there was a defect in the car, as defined in the Agreement, and the occurrence is alleged to have been caused by that defect.
The evidence is quite clear the Plaintiff's allegation in this case is that the injury was caused by improper or defective design or construction of the car.
The language of Rule 1(a)(3) and 1(f) is in simple English and, if taken alone, they would appear to bring this case within the terms of the Agreement. However, when considering the Agreement as a whole and perusing all the furnished available information, I am not certain the drafters of the Agreement intended the Agreement to cover an accident of this type.
Throughout the Agreement and history of the Agreement, where there is reference to a defect, I am not left with the impression the defect covered design or construction when there was no such defect and particularly where the design and construction conformed to all Federal and AAR regulations. Had this accident occurred on the maiden trip of this car in 1972, I cannot believe the drafters of the Agreement intended that a Possessing Carrier would be responsible for all costs and damages flowing from injuries to other parties when the injury is "alleged" to have occurred due to a defective design and whereon such defective design, or defect, existed.
I further do not consider the expression, "any condition of a car", contained in the definition of defect, Rule 1(f), pertains to the design and construction of the car and rule 14 covers those defects in design and construction which the drafters of the Agreement intended the Agreement to cover.
It is the position of the Norfolk & Western that Conrail was the Possessing Carrier, at the time of the accident, and must bear all costs under Rule 17. I do not find Rule 17 applicable, as the condition of the car was the same when placed for loading, as when the accident occurred, and the Norfolk & Western have stated there was no defect in the design or construction of the car. In my opinion, if the Agreement were apply, Rule 4 is applicable.
I find the Union Railroad Company was a Switching Carrier at Origin and, therefore, has no responsibility in this case.
For reasons hereinbefore set out, I do not find there was a defect in the car, as defined in the Intra-Industry Claims Agreement, nor do I consider it was the intention of the drafters of the Agreement and the signatories thereto to have a Carrier indemnify another Carrier for allegation of a design or construction defect when there was no such defect and the car conformed to all Federal and AAR regulations.
I, therefore, find all costs and damages arising from this lawsuit should be borne by the Norfolk & Western Railway Company.
S. R. Walker
Arbitrator
Manager General Claims
Canadian National Railway Company
October 7, 1982
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