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Intra-Industry Claims Agreement Arbitration Award No. 7

Warren Vanskike vs. Burlington Northern Railroad and Union Pacific Railroad

  1. Date and Place of Accident and Names of Claimants

    June 27, 1974
    Springfield, MO
    Warren Vanskike

  2. Names of Carriers Parties to Arbitration

    Union Pacific Railroad
    Burlington Northern Railroad (Frisco Railway)

  3. Statement of Uncontested Facts with Regard to Accident

    1. Rail car UP 53805 was manufactured by ACF industries.
    2. Rail car UP 53805 was a trailer flat car equipped with two ACF model A trailer hitches, also manufactured by ACF industries.
    3. Union Pacific was the owner of the car, UP 53805, which was purchased new in 1959.
    4. Car UP 53805 was delivered in interchange to the Frisco Railway at Kansas City, MO, on June 1, 1974 containing two empty trailers secured by the aforesaid hitches.
    5. Car UP 53805 remained in the possession of the Frisco Railway from 6/1/74 through the date of the injury.
    6. No records exist of car UP 53805 being repaired for 90 days prior to the date of the injury.
    7. On June 27, 1974, Warren Vanskike was assisting in affixing loaded B&OZ trailer 204181 onto the "A" end hitch of car UP 53805, when he used a mechanic's hammer to strike a portion of the hitch at which time the hitch fell into a lowered position, injuring his left arm and resulting in its amputation.
    8. As a result of his injuries Warren Vanskike brought about suits for damages against ACF, UP. He also sued Frisco Railway under FELA, alleging a defect in the car.
    9. UP and the Frisco Railway were and are both signatories to the IICA, and each has fully satisfied the judgment rendered against it in connection with this matter, including interest. Said amounts equal $612,630.61 in judgment and interest, plus $87,254.24 in costs for UP; and $815,488.60 in judgment and interest, plus unspecified costs for BN (Frisco Rwy.)

  4. Contentions of Carriers

    UP takes the position that Vanskike is an employee of Frisco Railway, and that Part II of the IICA applies. It was Frisco's duty to provide a car suitably equipped and free of defects to transport trailers which were to be loaded by the shipper. Responsibility for attaching the trailers to the cars rested with the railroad, and Mr. Vanskike was performing railroad work when injured. The matter falls under Part II, Rules, A, B, C, and E, which states that all costs should be levied against Frisco Railway. The trial court found that Vanskike was an FELA covered employee, and the finding was affirmed by the Eighth Circuit Court of Appeals.

    UP also contends that if Part II of the IICA does not apply, then Part I, Rule 12 applies: "The ORIGINATING CARRIER shall bear a full responsibility for COSTS of ACCIDENTS occurring in connection with the MOVEMENT that are attributed to DEFECTS which can be shown to have existed in the car when placed" In order for Part I, Rule 12, to apply, it must be found that Vanskike was not an agent nor employee of Frisco Railway to satisfy the definition of ACCIDENT.

    Frisco Railway contends that Vanskike was not an employee of the Frisco Railway, and Part I, Rule 14 applies. The injury was caused by a defect in the design of the model "A" hitch, and liability rests on the carrier placing a defective car into the stream of railroad commerce.

  5. Findings of Fact
    1. On request of BN (Frisco Rwy.) a review of the General Committee, Mechanical Division, AAR, was held on June 28, 1984. That committee discussed the construction and design of car UP 53805 and unanimously found that the design or construction did not produce a concealed defect, nor conceal a defect.
    2. Vanskike was employed by Frisco Transportation Company, and the Frisco Transportation Company by contract was an agent of the Frisco Railway.
    3. The trailer being loaded on the car UP 53805 had been sealed and removed from the shipper's premises and was in the process of being secured to an appurtenance on the car.
  6. Findings of the Panel

    We find that Warren Vanskike was not an EMPLOYEE of the Frisco Railway under terms of the IICA, and, therefore, Part II of the Agreement does not apply. Vanskike was on the payroll of the Frisco Transportation Company, and even through the Courts found that the FELA by its general definition extended coverage to Vanskike, that Part II covering employees does not extend to Vanskike under these particular circumstances. In reviewing early drafts of the IICA, we found several proposals to incorporate a definition of employee in the agreement. One such proposal was to include all those protected under FELA. Since the final draft of the Agreement does not include a definition of employee, we must conclude that such language was considered and rejected.

    We find that Part I of the IICA does not apply because there was no ACCIDENT as defined by the Agreement. Under Part I, Rule 1, (a), the definition of ACCIDENT: Any occurrence involving a car which meets all of the following conditions:

    1. The occurrence is alleged to have caused personal injury or property damage (except lading) to OTHER PARTIES: and
    2. The CAR was not IN TRANSIT at the time of the occurrence; and
    3. The occurrence is alleged to have been caused by a DEFECT.

    We find that car UP 53805 was IN TRANSIT.

    Part I, Rule 1, (g) defines IN TRANSIT: That period of a CAR's use when it is actually put in motion by a CARRIER or RAILROAD or is being prepared by employees or agents of a CARRIER or RAILROAD to be in motion, including all handling to destination.

    It is important to consider the definition of CAR, under Part I, Rule 1, (e): A railroad car, regardless of ownership, which has been handled by one or more CARRIERS during a MOVEMENT in which an ACCIDENT occurs. A railroad car includes all its appurtenances and all equipment fixed or loaded thereon.

    It is our finding that Vanskike was working for an agent of Frisco Railway in securing the loaded trailer to an appurtenance (the hitch) of a CAR, and therefore, was preparing the CAR to be put in motion. Agency is established between Frisco Railway and Frisco Transportation Company through the terms if the contract dated 2/15/74, wherein Frisco Transportation Company agreed to perform various services on behalf of the Frisco Railway. The contract called for Frisco Transportation Company to pull trailers from railroad flatcars and other railroad facilities and from such other places within the tariff area as designated by Frisco Railway and place such trailers upon railroad flatcars or at such other location with the tariff area as designated by Frisco Railway. Frisco Transportation Company sealed trailers at shipper's facilities with seals furnished by Frisco Railway (when shipper's seals were not used). Frisco Transportation Company employees executed bills of lading on behalf of Frisco Railway and collected such charges a were required under the billing of freight. The contract included a schedule of charges for the services rendered and such charges were paid to Frisco Transportation Company by Frisco Railway and not the shipper.

    Our decision on the IN TRANSIT subject was guided by the findings of Arbitration #3. In that matter, it was decided that the closing of a plug door on a car was tantamount to preparing the car to be put in motion, since the railroad would not move the car with the door open. In the Vanskike case, the car surely could not be moved unless the trailer was secured by the hitch, so the action of securing the trailer by the hitch was preparing the car to be put in motion.

    It is our conclusion that the drafters of the IICA recognized the difference between employee and agent. Evidence of their careful concern of this matter is in their definitions. In Part I, Rule 1, (g), IN TRANSIT, the wording "being prepared by employee or agents of a CARRIER or RAILROAD to be put in motion". In Part II, Rule B (ii), ACCIDENT: Any occurrence involving a railroad car which meets both of the following conditions:

    1. The occurrence is alleged to have caused personal injury or property damage to any employee of the POSSESSING CARRIER: and
    2. The occurrence is alleged to have been caused in whole or in part by a defective condition of a railroad car or its lading, including the loading or securement thereof, while that car or its lading was in the possession of the POSSESSING CARRIER.

  7. Conclusions

    We find that since an ACCIDENT AS DESCRIBED UNDER Part I, Rule 1 (a) did not occur, the IICA does not apply.

  8. Distribution of Liability

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

M. W. Boone, Jr.
Arbitrator

J. M. Kelly
Arbitrator

J. MacKay
Arbitrator