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Appeal Arbitration Award No. 4

Intra-Industry Claims Agreement Award No. 10

Fred W. Stoops vs. Consolidated Rail Corporation, Baltimore and Ohio Railway Company and Norfolk and Western Railway Company

Arbitrators ruled the agreement did not apply; therefore, the arbitration was dismissed (Rule 39) – see attached copy of the award.

Statement of Expenses (Rule 42)
R. E. Ryder BN $759.81
E. Knoll Soo 64.95
R. Small Belt 0.00
$824.76
Compensation to Arbitrators (Rule 45)
R. E. Ryder BN $100.00
E. Knoll Soo 100.00
R. Small Belt 100.00
$300.00
Arbitration Expenses - Grand Total $l,l24.76

Arbitration Account
Credits Debits
NS $500.00 held on account $1,124.76
Arbitration expenses

Distribution of Arbitration Expenses
Percentage to be paid by CR: 0%
Percentage to be paid by NS: 100% (Rule 39)
Dollar Amount to be paid by NS $1,124.76
Credit NS - 500.00
Balance due from NS $ 624.76
(AAR invoice #290962)

Intra-Industry Claims Agreement Award No. 10

Fred W. Stoops vs. Consolidated Rail Corporation, Baltimore and Ohio Railway Company and Norfolk and Western Railway Company

  1. Date and Place of Accident and Names of Claimants

    Fred W. Stoops, on September 23, 1985, in the B&O State Street Hard in Indianapolis, IN alleged an injury while disembarking from a coal hopper, NW 132484.

  2. Names of Carriers Parties to Arbitration

    Consolidated Rail Corporation (CR)
    Norfolk and Western Railway Company (NS)

  3. Statement of Uncontested Facts with Regard to Accident

    Fred W. Stoops was employed by CR as a conductor. During the course of his employment, Mr. Stoops alleged personal injuries due to an alleged defective ladder while disembarking from NW 132484, a coal hopper, after he had applied the hand brake on the car.

    NW 132484 was shipped to the Citizens Gas Coke Utility, Prospect Plant, Indianapolis, IN, routed "NW Ivory B&O". The car was delivered to the "Utility" and began its reverse route, and in this process, was delivered to the ìB&O State Street Yard: in Indianapolis, IN on 9/23/85 for interchange to the B&O Railroad. NW 132484 was alleged to have had a defective ladder.

    Mr. Stoops subsequently filed suit vs. CR, B&O and N&W.

  4. Contention of Carriers

    NS contends this matter falls under the IICA; the car involved in the alleged injury was in the possession of CR at the time of the ACCIDENT; the parties in dispute are CARRIERS, as defined in Part 2, Rule 1 (d) of the IICA Agreement; CR should have promptly excused NS from the Stoops suit, and inasmuch as CR failed to comply with the provisions of the IICA Agreement, CR failed to comply with the provisions of the IICA Agreement, CR should indemnify NS from any and all expense in connection with the ACCIDENT. NS feels a switching agreement between the Indianapolis Union Railway Co. (IU) and NS, et al., does not apply under the circumstances of the Stoops accident and seeks recovery of $23,932.41 spent in legal fees and expenses.

    CR contends the matter falls under the provisions of the IU Agreement, i.e., the IICA Agreement doesn't apply under the circumstances of this incident; NW 132484 was never interchanged to the CR system and was handled by its solely-owned switching railroad, the IU.

  5. Findings of Fact

    At the time of the alleged incident, NW 132484 was physically in the possession of the IU.

    At the time of the alleged incident, the intended interchange from the IU to the B&O had not been completed.

    At the time of the alleged incident, Fred Stoops was a CR employee performing service for the IU.

    The IU is not a Signatory to the IICA Agreement.

    CR is the sole owner of the IU.

    The IU is a switching railroad.

    CSX, NS (N&W), AMTRAK and the INDIANA RR are tenants of the IU.

    The IU Agreement of 9/20/1883, as modified 8/20/1906, was in full force and effect on 9/23/1985.

    Fred Stoops was being "paid in common" (language from the 9/10/1883 Agreement, as amended 8/20/1906) by the IU (CR) on 9/23/1985, at the time of the alleged incident.

  6. Conclusions

    On 9/23/85, at the time of the alleged injury, NW 132484 was in the possession of the IU, a switching railroad. For this reason, the IICA Agreement does not apply. If the IICA were to apply, Part 2, Rule D, applies under the circumstances of this incident.

  7. Distribution of Liability

    The arbitration claim of the NS is denied.

    Although the above Findings of Fact have dictated our conclusions, the Ownership of the IU evolved over the years, and is now solely owned by CR. The IU is a switching railroad operated for the benefit of its owner, as well as for the advantage of the other participating railroads serving Indianapolis who, through the IU Agreement, are able to participate in the benefits of terminal services, as well as reciprocal switching. Although the language of the IU Agreement doesn't address the specific circumstances involved in this incident, it appears to us that the broadly-worded modification to Article Eleven on 8/20/1906 made the Agreement acceptable and workable.

    Inspection of Car NW 132484 by CR, shortly after the alleged injury, failed to disclose any defective condition of the car. In spite of the allegations of the Plaintiff, Stoops, CR should have taken action to dismiss CSX & NS from the suit, inasmuch as the incident fell under the IU Agreement.

    We feel the intent of the IICA Agreement, in part, was to limit and/or prevent the spiraling costs of litigation. It is our uniform belief that the NS should not have had to incur nearly $24,000 in legal expenses.

Robert M. Small
Arbitrator
11/28/89

Ronald E. Ryder
Arbitrator
11/28/89

Eugene F. Knol
Arbitrator
11/28/89