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Intra-Industry Claims Agreement Arbitration Award No. 6

Raymond L. Vinsohaler vs. Burlington Northern Railroad, Union Pacific Railroad and Norfolk & Western Railway Company

  1. Date and Place of Accident and Names of Claimants

    9-30-80
    Omaha, Nebraska
    Raymond L. Vinsonhaler

  2. Names of Carriers Parties to Arbitration

    Burlington Northern Railroad
    Norfolk & Western Railway Company
    Union Pacific Railroad

  3. Statement of Uncontested Facts with Regard to Accident

    Raymond L. Vinsonhaler, an employee of Con Agra, Inc., sustained amputation of the left arm when he fell from the brake platform of NW car 71695 and was run over by the car. At the time the accident occurred, he was attempting to control the car movement with the handbrake and alleges that his fall was caused by a defect in the brake. The accident occurred on Con Agra?s siding on September 30, 1980. Vinsonhaler sued BN, UP and NW and the case was settled for $332,243 with BN, UP and NW, each paying one-third of this amount.

  4. Contentions of Carriers

    The BN claims car was IN TRANSIT at time of accident and, therefore, the IICA is not applicable. The UP and NW claims the car was not IN TRANSIT and the IICA is applicable. The UP also contends the UP was switching carrier and BN was both originating and possessing carrier and under rule 12, the BN should bear entire costs.

    More specifically, the BN?s position is that there was no IICA ?MOVEMENT? involved in this case. Rule 1 (h) defines a ?MOVEMENT? as a single journey beginning with the placing of a car for loading. ?It was the intent and purpose of the drafters that a MOVEMENT would not begin until a car had actually been placed or spotted for loading?? (See History of the IICA, page 7).

    The car had not been spotted for loading but rather had been set out on a track owned and maintained by UP. Thus, a ?MOVEMENT? as contemplated by the IICA had not begun. UP argues the BN apparently reads ?placed or ?spotted? to be synonymous. Therefore, it contends the cars were not spotted and were still IN TRANSIT from the inbound movement. However, ?placed? means the car is given to the shipper and the POSSESSING CARRIER, (in this case SWITCHING CARRIER) has withdrawn from the car, with no further handling contemplated by the CARRIER until loading has been completed, the car is ready for shipment, and the CARRIER actually arrives to pick up the car. ?Spotting? means the car is placed in the exact position for loading by the CARRIER and the CARRIER has withdrawn. All cars are ?placed? by a CARRIER or a RAILROAD but not all cars are ?spotted? by a CARRIER or RAILROAD. In this case, the car was ?placed? by a CARRIER but ?spotted? by employees of the shipper. Therefore, the car was no longer IN TRANSIT subsequent to its being ?placed? by the CARRIER.

  5. Findings of Fact
    1. That UP placed car NW 71695 AT Con Agra for loading on September 28, 1980:
    2. That a ?MOVEMENT? was involved:
    3. That the BN was the only carrier involved in the ?MOVEMENT?;
    4. That Mr. Vinsonhaler did allege that his accident resulted from a defect in the car NW 71695;
    5. That car NW 71695 was apparently scheduled to move BN from Omaha, Nebraska to Keokuk, Iowa;
    6. That there was no evidence of any repair of NW 71695 within 90 days prior to the ?ACCIDENT? that produced a concealed ?DEFECT? or concealed ?DEFECT? causing the ?ACCIDENT?.
  6. Findings and Discussion of the Portions of Agreement Applicable to Case

    When UP placed car NW 71695 at Con Agra on September 28, 1980, and removed their engine, a ?MOVEMENT? as defined by Rule 1 (h), began and the IN TRANSIT status of the car as defined in Rule 1 (g) ceased:

    • MOVEMENT: ?A single journey beginning with the placing of a CAR by a possessing carrier ??
    • IN TRANSIT: That period of a CAR?s use when it is actually put in motion by a CARRIER or a RAILROAD or is being prepared by employees or agents of a CARRIER or a RAILROAD to be put in motion, including all handling to destination. This includes relocation of the CAR by a CARRIER or a RAILROAD within an area under control of the same shipper or of the same consignee and CARS on interchange tracks. [Amended 2-5-78].

    There is no evidence that any employees or agents of ?CARRIER? or RAILROAD was involved in further handling of car NW 71695 from the time it was placed by UP until the time of ACCIDENT.

    While no waybill had been issued, a Request for Switching-Cara Release instructions from Con Agra to UP, at 4:06pm on 9-30-80, shows Car NW 71695 to BN at Omaha. Additionally, a Con Agra Form dated 9-30-80, lists NW 71695, BN Henkel, Keokuk, a point served direct by BN from Omaha. Finally, in their Statement of Position, BN did not deny that they would get the outbound haul from Omaha to Keoku. We feel that the foregoing is sufficient evidence to conclude that BN was to handle this car from Omaha to Keokuk, and under these circumstances, UP would be the switching carrier at origin and BN was both Originating Carrier (Rule 1(i)) and POSSESSING CARRIER, Rule 1(k):

    • ORIGINATING CARRIER: ?First CARRIER in a ?MOVEMENT?;
    • POSSESSING CARRIER: A CARRIER in possession of a CAR or which has made it available to a shipper or consignee during which time an ACCIDENT occurs ??

    Union Pacific as switching carrier at origin can not be an originating carrier nor a first carrier in a MOVEMENT (Rule 1(i)) and can not be charged with any responsibility under Rules 10 and 12.

    Since there was no evidence to indicate that Rules 14(a) or Rule 14(b) would apply, NW?s only involvement in this movement was as owner of the Car and under Rule 11, car ownership alone does not create any liability under the IICA.

  7. Conclusions<

    Car NW 71695 was not IN TRANSIT. A MOVEMENT as defined by the IICA had began. An ACCIDENT, as defined in Rule 1(a), did occur. We, therefore, feel that the IICA does apply to this case and that BN as both Originating and Possessing Carrier and the only Carrier to be involved in the Movement shall bear full responsibility for the costs of this accident as provided for in Rules 10 and 12.

  8. Distribution of Liability

    Amount arbitrated $322,243

    BN LiableYesXNoAmt.$332.243
    UP LiableYesNoXAmt.$0
    NW LiableYesNoXAmt.$0

    E. Gambill
    Arbitrator
    February 15, 1984

    P. J. Floyd
    Arbitrator
    February 16, 1984

    H. A. Joseph
    Arbitrator
    February 21, 1984