IICA Information Shortcuts
File_16x16 Overview User2_16x16 Officers  Agreement Edit_16x16 Signatories Support1_16x16 Arbitrators Folder Cases


Intra-Industry Claims Agreement Award No. 13

John R. Bleisener and Wallace Sabasko vs. Canadian National Railway Company, CP Rail System and Duluth, Winnipeg & Pacific Railway

Expenses of Arbitrators (Rule 42)
J. M. Kelly CSXT $ 875.66
N. R. Udewitz SP 744.35
R. A. Wells NS 559.17
$2179.18
Expenses of Arbitrators (Rule 45)
J. M. Kelly CSXT $ 100.00
N. R. Udewitz SP 100.00
R. A. Wells NS 100.00
$ 300.00
Arbitration Expenses - Grand Total $2479.18

Arbitration Account
Credits Debits
$500.00 CN deposited with letter of 8/24/95 representing arbitration $2,479.18
Arbitration expenses

Distribution of Arbitration Expenses
Percentage to be paid by CPRS: 0%
Percentage to be paid by CN: 100% (Rule 41)
Dollar Amount to be paid by CN $2,479.18
Credit NS - 500.00
Balance due from NS $ 1979.18
(AAR invoice #IICA-001)

Intra-Industry Claims Agreement Award No. 13

John R. Bleisener and Wallace Sabasko vs. Canadian National Railway Company, CP Rail System and Duluth, Winnipeg & Pacific Railway

  1. Date and Place of Accident and Names of Claimants

    March 9, 1989, Minneapolis, MN
    John Robert Bleisener

    March 11, 1989, Minneapolis, MN
    Wallace Sabasko

  2. Names of Carriers Parties to Arbitration

    Canadian National Railway Company
    CP Rail system (Soo Line)
    CN (Duluth, Winnipeg & Pacific Railway)

  3. Statement of Uncontested Facts with Regard to Accident

    1. That John Robert Bleisener, an employee of the Minneapolis Star, was injured while opening a plug door on railcar DWC403137 at Minneapolis, MN on 3/9/89.
    2. That Wallace Sabasko, an employee of the Minneapolis Star was injured while opening a plug door on railcar CVC402584 at Minneapolis, MN on 3/11/89.
    3. That at the time of these accidents, all three CARRIERS involved in this MOVEMENT were signatories of the Intra-Industry Claims Agreement. Rule 1(d).
    4. That both incidents were ACCIDENTS as defined in Rule 1(a).
    5. That both railcars were CARS as defined in Rule 1(c).
    6. That CP Rail incurred COSTS in the Bleisener case in the amount of $64,369.94, and in the Sabasko case in the amount of $4750. Rule 1(e). Further, that those COSTS were fair and reasonable and uncontested by the other CARRIERS herein.
    7. That CP Rail as POSSESSING CARRIER, is not seeking indemnification for the first $2500 of COSTS in each respective claim. Rule 5.
    8. That both CARS contained DEFECTS as defined in Rule 1(f). Further, that said DEFECTS were shifted loads, and the investigation by all CARRIERS confirmed no mechanical DEFECTS such as broken door, lock or other mechanical problem causing the ACCIDENT.
    9. That both CARS were spotted at the industry and therefore not IN TRANSIT at the time of the injury. Rules 1(a) and 1(g).
    10. That both ACCIDENTS occurred during a MOVEMENT as defined in Rule 1(i).
    11. That Canadian National Railway Company is the ORIGINATING CARRIER as defined in Rule 1(i).
    12. That Abitibi/Price was the shipper in both ACCIDENTS and that Abitibi/Price and Minneapolis Star & Tribune are OTHER PARTIES as defined in Rule 1(j).
    13. That CP Rail System (Soo Line) was the POSSESSING CARRIER as defined in Rule 1(k).
    14. That the REVENUE as defined by Rule 1(m) on these MOVEMENTS is $2177.28 in each case.

  4. Contention of Carriers

    It is the position of CP Rail that the evidence is that neither Rule 16 nor Rule 17 should be applied to these ACCIDENTS, and that the evidence clearly shows the applicable rules are Rule 18 and Rule 33, both of which support the proposed reimbursement to CP Rail in the amount of $61,869.94 in the case of Bleisener and $2250 in the case of Sabasko.

    It is CN's belief that Rule 17 should take precedence in this matter. Their reasons for arriving at this conclusion are as follows:

    1. The railcar was delivered to the consignee at destination without apparent exception. No bulging of the doors was noted to suggest load shift. Any defects such as an alleged load shift that may have occurred en route would have been, in effect, "unlocated damage."
    2. The shipment moved in a closed box car. There is no A.A.R. requirement for the originating carrier to open and inspect the load prior to accepting the railcar for movement.
    3. Indications are that the delivering carrier may have erred in neglecting to spot the car according to "placarded instructions."
    4. There was no mechanical or design defect with the railcar.
    5. According to Intra Industry Claims Agreement Rule 18(d), when responsibility cannot be fixed, costs shall be apportioned among carriers participating in the movement as provided by Rule 17.

    Specifically, it is CNís view that the costs should be apportioned among the carriers on a revenue mileage prorate basis.

  5. Findings of Fact

    Both Bleisener and Sabasko were employees of Minneapolis Star, injured n the normal course of their duty, attempting to unload box cars DWC404137 and CVC402584 respectively.

    There appears no information contained in the material provided that contradicts that both accidents were caused by the improper loading of newsprint rolls by Abitibi/Price at their Thunder Bay, Ontario plant. No evidence was discovered to indicate the two cars in question, DCC404137 or CVC402584, were improperly spotted for unloading. Neither is there information that the rolls of paper shifted during movement due to any improper train handling.

    CP Rail properly investigated and handled to conclusion the claims of the two Minneapolis Star employees based on sound claim practices.

  6. Findings of the Panel

    Rule 5 - The POSSESSING CARRIER shall assume, and shall not seek indemnification or any contribution from other CARRIERS for, the first $2,500* of COSTS in the aggregate resulting from a single ACCIDENT. [*Amended May 19, 1981 and again on July 13, 1982.]

    Rule 5 is applicable and is nondisputed by CARRIERS.

    Rule 17 - When an ACCIDENT occurs at the destination of a MOVEMENT or at a STOP-OFF POINT because of a DEFECT, and investigation does not establish that the DEFECT existed when the CAR was placed for loading, or fix the time or place during the MOVEMENT when the DEFECT came into existence or determine the party responsible under provisions of Rule 14, COSTS shall be apportioned as follows:

    1. SWITCHING CARRIERS shall pay nothing except as provided in (b) hereof.
    2. POSSESSING CARRIER shall pay the first $2,500* [Amended July 13, 1982].
    3. The remaining COSTS shall be apportioned among all CARRIERS that participated in the MOVEMENT to the destination or STOP-OFF POINT, except as provided in (a) hereof, in shares proportionate to the share of each CARRIER in the total REVENUE calculated without reference to charges of SWITCHING CARRIERS.

    Rule 17 has been cited by CN as the prevailing portion of the Agreement. It is our finding that Rule 17 does not apply in that the defect was the improper loading of the cars by Abitibi/Price at the point of origin and there is no evidence of any derailment or improper train handling on the part of any CARRIER. This rule would only apply if the investigation did not establish the cause of the ACCIDENTS.

    Rule 18(a) – When it can be shown that shifting, leaking or other DEFECT of lading in or on CARS resulting from improper loading or lack of appropriate doorway protection caused an ACCIDENT at destination or STOP-OFF POINT, all COSTS shall be borne by the ORIGINATING CARRIER except as provided in Rules 5 and 18(b).

    We find that this rule is on point that the improper loading of paper rolls by Abitibi/Price, identical in the accidents involving Sabasko and Bleisener, only two days apart, caused the claimed injuries. The loads shifted through normal train handling by all CARRIERS involved in the MOVEMENT.

    The file contains numerous internal references to the improper loading procedures of Abitibi/Price by the CN prevention & claims service. Rule 18 was written so that the parties who can best prevent possible injuries from this improper loading procedure, namely the ORIGINATING CARRIER and shippers, assume responsibility. It is the responsibility of the shipper to make certain that CARS are loaded properly and safely, and it is the responsibility of the ORIGINATING CARRIER to see that the shippers do so and enforce proper loading procedures. Neither party lived up to their responsibilities in the two accidents in question.

    RULE 33 - Following the settlement of claims(s) or lawsuit(s), paying CARRIER shall send notice of distribution to other interested CARRIERS by registered or certified mail. Within sixty days from the date of receipt of such distribution notice, distributes must accept or reject the distribution proposed and inform all other interested CARRIERS of their acceptance or rejection. Payment shall accompany each acceptance. Failure to respond shall be treated as acceptance. If any CARRIER shall have rejected the proposed distribution, the paying CARRIER or any rejecting CARRIER may request arbitration within ninety days from receipt of notice of rejection by filing a request for arbitration with Secretary. Failure of paying CARRIER to request arbitration within ninety days after another CARRIER has rejected its proposed distribution shall be treated as a waiver of the rejected claim unless another CARRIER has requested arbitration. No request for arbitration shall be valid unless such request shall be accompanied by a check in the amount of $500 payable to the Treasurer for deposit by him in an arbitration fund. No request for arbitration may be withdrawn without the consent of all interested CARRIERS. The $500 payment shall not be refunded in the case of withdrawal.

    CP Rail claims a violation of Rule 33 by CN, indicating that CNís ìfailure to respond to their letter of 4/7/95 shall be treated as acceptance. We reject this argument and do not feel that Rule 33 serves as a bar to this arbitration. The file reveals that as early as September 11, 1992, CN voiced objection to the application if IICA Rule 18(a) in the claims of Bleisener and Sabasko.

  7. Conclusion

    We feel that Rules 5 and 18(a) are the governing portions of the Agreement.

  8. Distribution

    Originating Carrier (CN): $64,119.94

DISTRIBUTION OF LIABILITY

AMOUNT ARBITRATED: $64,119.94

CARRIER NO. 1 (CN) - LIABLE (YES) - AMOUNT $64,119.94

CARRIER NO. 2 (DWP) - LIABLE (NO)

CARRIER NO. 3 (CP) - LIABLE (NO)

DATED THIS 1ST DAY OF MARCH, 1996

Norman R. Udewitz
Arbitrator
March 5, 1996

John M. Kelly
Arbitrator
March 6, 1996

Robert A. Wells
Arbitrator
March 12, 1996