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ARBITRATION AWARD NO. 1

Elise Maloney, widow of Louis F. Canepa; Diana Canepa, wife of William H. Baricos; Elise Canepa, wife of James A. Nunley; and Pamela Canepa, wife of Charles J. Barbera v. Champion International Corporation; Illinois Central Gulf Railroad Company; and American Mutual Insurance Company of Boston, Massachusetts

The captioned suit arose from fatal injuries to Louis F. Canepa at New Orleans, Louisiana, November 26, 1974. The plaintiffs included the widow and three adult children of the deceased. Each plaintiff itemized her damages in the complaint filed in United States District Court for the Eastern District of Louisiana in January, 1975 in the total amount of $905,000.00. Defendants were Champion International Corporation, owner of the box car involved, Illinois Central Gulf Railroad Company, delivering carrier, and American Mutual Insurance Company of Boston, Massachusetts, the Workmen's Compensation Insurance carrier. Later the car manufacturer, Thrall Car Manufacturing Company, and the door manufacturer, Youngstown Steel Door Company, were made parties to the case.

The suit was dismissed with prejudice on October 28, 1976 following settlement consummated in accordance with Rule 33 of the Intra-Industry Claims Agreement as follows:

Illinois Central gulf Railroad Company, as Possessing Carrier, paid $133,880.00 to plaintiff and $2,500.00 to American Mutual Insurance Company of Boston, on behalf of the railroad carriers, ICG RR Co., Southern Pacific Transportation Company and Union Pacific Railroad Company.

The Liberty Mutual Insurance Company, on behalf of the car owners, Champion International Company, McCloud Railroad Company and Plycar Corporation paid $133,880.00 to Plaintiff and $2,500.00 to Workmen's Compensation carrier, American Mutual Insurance Company of Boston. The manufacturer of the door, Youngstown Door Company, paid an aggregate of $40,000.00. The total amount paid in settlement was therefore $307,760.00 to the Plaintiff and $5,000.00 to the Workmen's Compensation insurance carrier.

It was agreed among the carriers that disposition of the suit would be made in the above manner and that distribution of the amounts paid would be determined under provisions of the Intra-Industry Claims Agreement. Thereafter, Southern Pacific Transportation Company, pursuant to Rule 33, notified paying carrier, ICG RR Co., that it rejected and declined to accept responsibility. ICG RR Co. then complied with Rules 33-35-37 and requested Arbitration.

The members of this Arbitration Panel were named by Secretary J. D. Temple pursuant to Rule 36.

Pursuant to Rule 38, each carrier submitted to the Arbitrators its statement of position as recited below:

Illinois Central Gulf Railroad contends that Southern Pacific Transportation Company is responsible under Rules 12 and/or 18(a) for all costs incurred in connection with handling and settlement of the case, except that ICG RR Co., as Possessing Carrier, is responsible for $2,500.00 of the settlement and handling costs as provided in Rule 5.

Union Pacific Railroad Company fully concurred with the position taken by ICG RR Co.

Southern Pacific Transportation Company contends that the defect did not occur or become manifest until the door was opened in New Orleans and that both ICG RR Co. and U.P. failed to prove that the defect" as opposed to a deteriorating condition" which caused the accident actually existed when the car was placed for loading. It further contends that the defect involved (a) failings in design and/or construction created by Thrall Car Manufacturing Company and Youngstown Steel Door Company, and (b) repair of the upper door track by McCloud River Railroad which produced or at the very least failed to correct, a defect which caused the accident. According to S.P., the costs should be apportioned between the Carriers in accordance with Rules 14(c) and 17.

We hold that all parties to this dispute are subject to the terms of the Intra-Industry Claims Agreement as provided in its Rule 2, in that each was a CARRIER [1(d)] participating in a MOVEMENT [1(h)] in which an ACCIDENT [1(a)] occurred.

The investigative materials submitted revealed that car P.L.Y.X.-1670, an all door” car, was delivered to U.S. Plywood at Rosewood, Oregon at 6:00p.m. on November 11, 1974 by southern Pacific Transportation Company. The car was loaded with plywood and received from U.S. Plywood at 5:00 p.m. on November 13, 1974. It moved SP.-Ogden, Utah, Union Pacific Railroad to Kansas City, Missouri, and Illinois Central gulf to New Orleans, Louisiana. The car was delivered to Markel Lumber Company at New Orleans by I.C.G. on November 25, 1974.

The car had four twelve-foot plug doors on each side. It was built in March 1967. The doors are identified from A to B and as C door, B door, A door and D door. The door being opened at the time of accident was the 'A” door. The car is specifically designed to open fifty percent (50%) of its length for complete loading or unloading from the side by mechanical methods.

Louis Canepa and Roosevelt Lafayette, employed by Markel Lumber Company, had broken the seal, unlatched the door, and moved it away from the side of the car. It was when they started shoving the door from left to right "the evidence being that the door had moved laterally" that it fell. Mr. Lafayette moved out of the way; however, Mr. Canepa was crushed when the door fell on top of him.

The operating assembly of this plug type door consists of a vertical lever-style handle attached to a housing centered at the lower half of the door. Two steel rods, one at each side and connected to parts within the housing, emerge horizontally and connect with long vertical rods near the outside edges of the door, running from the top door track to bottom door track. Affixed to the top of each vertical rod is a crank arm running perpendicularly. On top and at the end of the crank arm is a short vertical pin around which the door roller turns. A retaining clip, with three vertical flanges rising from a flat base with a center hole, is inserted over the short vertical pin and the base rests on top of the crank arm. Two of the vertical flanges along with the roller and short vertical pin are inside the top door track. The third is on the outside. The roller, pin and retaining clip all move as a unit when the crank arm is activated. From closed to open position of the door these components move a distance of 10 to 12 inches inward. When the door is in closed position, the crank arm on the right side vertical rod extends towards the right edge of the door and the crank arm on the left rod towards the left. The rollers facilitate movement of the open door. One opens the door by turning the handle counterclockwise. This causes the horizontal rods to activate the vertical ones in such a way that the top rollers are drawn in toward the center of the door. At the same time, the crank arms to which the rollers are attached move perpendicularly to the car body, forcing the door outward in the open position for lateral movement.

The inspection of the door following the accident revealed that there were two holes in the top track. The holes were at a point where the pin and roller rest within the track when the door is in closed position. These were wear holes. The pins on both crank arms were badly worn. Only one roller was found and it was badly worn.

There is no evidence that the car received a mechanical inspection by S.P. at origin or that the door which fell was operated at origin by U.S. Plywood.

There was evidence that the plywood was disarranged inside the car and perhaps during movement had shifted against the door. We unanimously agree that the shifting of the load did not cause the accident and therefore Rule 18(a) is not applicable.

The evidence as to the condition of the door appurtenances is such that the defect [as defined in Rule 1 (f) DEFECT: Any condition of a CAR, or of its lading including the loading or securement thereof, which is alleged to have been the cause of ACCIDENT leading to claim(s) or lawsuit(s)] conclusively existed at the time the car was placed for loading, and it is our finding that Southern Pacific Transportation Company is responsible for all costs incurred under Rule 12 of the Intra-Industry Claims Agreement except, of course, $2,500.00 paid by the Possessing Carrier, Illinois Central Gulf Railroad Company, under Rule 5.

J. Lefebvre
General Claim Agent
Canadian Pacific Ltd.

W. K. Hunt
Claims Administrator
Seaboard Coast Line RR

H. L. Clatterbuck
Chief Claim Agent
Norfolk and Western Ry.

September 8, 1977

ARBITRATION APPEAL AWARD NO. 1

In Re Arbitration Appeal of Southern Pacific Transportation Company Under Intra-Industry Claims Agreement from I.I.C.A. Award No. 1 in Favor of Illinois Central Gulf Railroad Company and Union Pacific Railroad Company

Canepa v. Champion International Corp., et al.

This is an appeal by Southern Pacific Transportation Company (SP) from an arbitration award rendered by an arbitration panel pursuant to I.I.C.A. rules on September 8, 1977. The award was in favor of Illinois Central Gulf Railroad Company (ICG) and Union Pacific Railroad Company (UP)and adverse to SP.

Also involved is a 'position statement of southern Pacific Transportation Company on appeal”, dated December 9, 1977 with the question being whether or not SP is permitted under the I.I.C.A. Rules to file such a position statement. A motion to strike said position statement was made by ICG on December 28, 1977, but in the alternative ICG requested an additional fifteen (15) days to furnish position statements to this appeal panel in the event of an adverse ruling on ICG's motion to strike and in the event of the appeal panel desired additional position statements.

As to the position statement filed by SP on December 9, 1977 (which we have reviewed), it is our decision that the I.I.C.A. Rules do not permit such a position statement to be filed unless requested by the appeal arbitrators. Here such a position statement was not requested by the appeal arbitrators and it is clear that the intent of the writers of the I.I.C.A. rules was that the appeal arbitrators shall have before them only the record before the arbitrators and the award of the arbitrators unless requested by the appeal arbitrators. The motion to strike by ICG is granted.*

The controversy between SP, UP and ICG involves settlement of a suit arising from fatal injuries sustained by Louis F. Canepa at New Orleans, LA, November 26, 1974, when decedent, an officer of Markell Lumber Co., was assisting other Markell employees in opening an 'all door” car, P.L.Y.X. 1670, and one of the doors feel from the car causing Mr. Canepa's death. The plaintiffs were the widow and three adult children. The defendants were Champion International Corporation, owner of the car, Illinois Central Gulf Railroad Company delivering carrier, American Mutual Insurance Company of Boston, Massachusetts, workmen's compensation insurance carrier, Thrall Car manufacturing Company, car manufacturer and Youngstown Steel Door Company, door manufacturer, and several others.

Settlement of the suit was consummated as follows:

Illinois Central Gulf as possessing carrier paid $133,880 to plaintiffs and $2,500.00 to American Mutual Insurance Company of Boston on behalf of the railroad carriers, ICG RR. Co., possessing carrier, Southern Pacific Transportation Company, originating carrier and Union Pacific Railroad Company, intermediate carrier.

The Liberty Mutual Insurance Company on behalf of the car owners paid $133,880.00 to plaintiffs and $2,500.00 to workmen's compensation carrier, American Mutual Ins. Co. of Boston. The door manufacturer, Youngstown Door Company, paid $40,000. The total amount paid was $307,760.00 to plaintiffs and $5,000.00 to the workmen's compensation insurance carrier.

Between the carriers it was agreed that disposition of the suit would be made in the above manner and that distribution of the amounts paid would be determined under provisions of the Intra-Industry Claims Agreement. Following settlement ICG and UP demanded that SP pay all costs thereof (less $2,500 which ICG as possessing carrier was obligated to pay under I.I.C.A. Rule 5) under I.I.C.A. Rule 12 (originating carrier responsible for accident caused by defect in existence at the time car placed for loading) and under I.I.C.A. Rule 18(a) (originating carrier responsible for accident resulting in improper loading). SP refused contending that ICG and UP failed to prove that the defect which caused the accident actually existed when the car was placed for loading. SP further argued that the defect involved failings in design and/or construction created by the car manufacturing company and door manufacturing company, and that repair of the upper door track by McCloud River Railroad either produced or failed to correct a defect which caused the accident. Therefore, SP contends the costs should be apportioned between the carrier in accordance with Rules 14(c) and 17 of the I.I.C.A.

The arbitrators held on September 8, 1977, that all parties to the dispute were subject to the terms of the I.I.C.A. as provided in its Rule 2; that the shifting of the load did not cause the accident and Rule 18(a) was not applicable and the defect [as defined in Rule 1(f)] conclusively existed at the time car was placed for loading and SP under Rule 12 of I.I.C.A. is responsible for all costs incurred other than the $2,500 paid by the possessing carrier, ICG, under I.I.C.A. rule 5.

Inspection revealed after the accident that the cause of the door disengaging was a defective door mechanism. The top door track had two holes worn through which permitted the door to disengage from the track. There was serious wear on the crank arms and one roller, and the other roller was missing.

SP was required to inspect all cars which were furnished to a shipper. The condition of the car was such that the defect could have been detected by inspection. SP had control of this car for some time before placement for his load, and was familiar with this type equipment. The evidence is such that it can be reasonably concluded that inadequate, or no, inspections of the doors were made by SP.

SP argued that there was a design or construction defect, or poor repair job, and that Rule 14(c) applied. Our review of the evidence, and particularly the history, age and experience of this type car, causes us to disagree and reject this argument.

The majority of Appeal Arbitrators concurs with the findings of the arbitrators in holding that the condition of the door was such that the defects existed at the time the car was placed for loading and SP is responsible for all costs incurred under Rule 12 of I.I.C.A. except the$2,500.00 paid by ICG and under I.I.C.A. Rule 5.

Mr. J. H. Caster dissents.

Dated: February 1, 1978

*The panel suggests that Rule 40(c) be revised to provide for written briefs and possible oral arguments on appeal.