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Intra-Industry Claims Agreement Appeal Arbitration Award No. 2

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 (Now Norfolk Southern Corporation)
    Union Pacific Railroad Company (Nor Union Pacific System)

  3. Statement of Uncontested Facts with Regard to Accident

    Car NW 71695 was to be returned home empty Chicago to Freemont, Nebraska on free Waybill, Chicago, South Shore and south Bend Railroad Waybill No. 500 by the Burlington Northern destined to ConAgra Inc. at Freemont. At the request of ConAgra, Inc., the destination of the car was changed from Freemont to Omaha, Nebraska and the change occurred at Lincoln, Nebraska. Waybill No. 5 was altered to show this change and in handwriting on the Waybill there is a notation that the car is for "UP DELY". The Waybill is stamped with a BN Yard Office stamp to indicate this change in routing. The Car arrived at Omaha on September 24, 1980 and was interchanged by the BN to UP at approximately 2200 hours, September 24 empty. The Car was stored at the UP E Yard, Omaha, until September 28, when it was placed, along with other empty Cars on the UP owned track servicing ConAgra, Inc. at approximately 0400 hours. The file and papers provided do not indicate that this track services any Industry other than ConAgra, Inc. The file indicates that after Cars are placed on this track by the UP, they are than moved by employees of ConAgra, Inc. On September 29, 1980, Car NW 71695 was moved a short distance on the ConAgra, Inc. track by their employee, Herman Reynolds. Mr. Reynolds moved the Cara by releasing the handbrake and then reapplying it in order to stop the Car and advised in a statement he found no problem with the handbrake. On September 30, 1980, a number of Cars on this track were being moved by employees of ConAgra, Inc., including Car NW 71695 which was to be moved by Raymond L. Vinsonhaler. The Cars are moved on this track by ConAgra, Inc. employees by means of releasing the hand brake and allowing the Cars to roll north on a descending grade. The cars are moved in this manner when both empty and loaded. The empties are spotted at the loading facility and the hand brake reapplied. After the Cars are loaded, the hand brake is released by employees of ConAgra, Inc and the loaded Cars again move northerly on the descending grade. Mr. Vinsonhaler boarded Car NW 71695 at the northeast leading corner and took up a position on the brake platform. This was at approximately 1900 to 1930 hours, September 30, 1980. Mr. Vinsonhaler alleges he had difficulty operating the brake and, in some manner, fell from the moving Car suffering a number of injuries, including partial amputation of his left arm.

  4. Contentions of Carriers

    It is the position of the NW that Car NW 71695 was not In Transit at the time the accident occurred. They also contend that no Carrier or Railroad employee, or their Agents were involved with the handling of the Car at the time of the accident. They contend there was a Movement and Accident, as defined by the IICA Rules. They contend there was objective evidence that the Industry intended to ship the Car via BN, after it was loaded, and there was an inference (based on BN's failure to deny it) that BN had prior knowledge of this fact.

    It is the position of the UP that a Movement began when the Car was placed by them on the track servicing ConAgra, Inc. They further contend they were a Switching Carrier at point of origin, handling the Car for a switching fee only and, therefore, under the IICA Rules, could not be considered the Originating Carrier or the Possessing Carrier. It is their position that ConAgra, Inc. made the determination prior to the accident that Burlington Northern would receive the line haul of this Car after it was loaded and, therefore, BN was the Originating Carrier and the Possessing Carrier.

    The position of the BN is that the IICA is not applicable to this incident. It is their position that Car NW 71695 was In Transit at the time of the Accident. They also contend there was no Movement, as defined by IICA Rule 1(h). In a position paper filed with the Appeal Arbitrators, they further contend there was a lack of sufficient documentation prior to the Injury to conclude that BN was to receive the road haul of this Car after it was loaded. Further, there was considerable information on file to indicate there was no defect in the handbrake of NW 71695 and, therefore, as there was no defect, there could be no Accident.

  5. Findings of Fact

    1. We are in agreement with the uncontested facts as stated in paragraph 3.
    2. We find that under Part I, of the IICA, there was an Accident, as defined by Rule 1(a), and that all the conditions in Sub. Paragraphs 1, 2 and 3 were met.
    3. We find there was a Movement, as defined by Rule 1(h), which commenced when the Car was placed by the UP, at the request of ConAgra, Inc. for loading.
    4. We find the UP was the first Carrier in the Movement but was not the Originating Carrier, as it did nothing more than handle the Car for a switching charge. (Rule 1(i))
    5. We find the UP was the Switching Carrier as defined by Rule 1(o).
    6. We find the UP was not the Possessing Carrier, as defined in Rule 1(k), which stipulates a Switching Carrier at Origin shall not be regarded as a Possessing Carrier.
     

  6. Findings and Discussion of the Portions of Agreement Applicable to Case

    We are satisfied that all conditions, as defined by Rule 1(a), Sub-paragraphs 1, 2 and 3 were satisfied. No. 1 was obvious and undisputed. We find the Car was not In Transit at the time of the occurrence. The Car had been placed by the UP on the track servicing ConAgra, Inc., on September 28, 1980, and had not been handled by them or their employees from that time until after the accident occurred on September 30, 1980. There is no evidence to indicate the UP exercise any control whatsoever over the employees of ConAgra, Inc. and there is no evidence to indicate employees of ConAgra, Inc. are acting as agents of the UP or any other carrier, as defined in Rule 1(g) and, therefore, the Car was not In Transit at the time of the occurrence.

    It is alleged by Mr. Vinsonhaler, as well as other employees of ConAgra, Inc., that the hand brake on Car NW 71695 and this statement was never contested. We, therefore, find it to be a fact. The UP, therefore, was a Switching Carrier, as defined by Rule 1(o), was not the Originating Carrier, under Rule 1(k), which specifically states, in part, "A Switching Carrier at Origin shall not be regarded as a Possessing Carrier".

    There is no allegation by any of the parties involved in this case that Rule 14 is applicable and, therefore, the NW, as Car Owner, has no liability under Rule 11.

    We found the major problem to resolve in this case was whether or not there was a Possessing Carrier, as defined by the IICA at the time this Accident occurred. As a Switching Carrier at point of origin, the UP was excluded from being the Originating Carrier and the Possessing Carrier. We reviewed the History of the Intra-Industry Claims Agreement, in conjunction with the Agreement, and determined that it was the intent that a Switching Carrier at origin was performing a service for the initial road haul Carrier. Therefore, at the time an Accident occurs, if the initial road haul Carrier is unknown, the IICA cannot apply.

    There was a paucity of evidence and documentation provided by both the BN and the UP on this critical point. The UP request for switching "car release, Order No. 48, dated September 30, 1980, and received at 4:06 'p' (presumably p.m.) requests the UP to pull a number of loaded Cars, including NW 71695, from ConAgra to 'OMA BN'. (We interpret this to mean the UP was to deliver NW 71695 to the BN at Omaha). The injury did not occur to Mr. Vinsonhaler until sometime between 7:00 pm and 7:30 pm, September 30, 1980. There was also provided a very poor and somewhat illegible copy of a ConAgra, Inc., form which indicates an address of 29th and 'C' Street, Omaha, Nebraska, dated September 30, 1980, and appears to indicate Car NW 71695 is to be handled by the BN.

    After the accident occurred, it was the position of both the UP and the NW that BN was the Originating and the Possessing Carrier at the time of the occurrence. In a letter, dated March 26, 1981, from Mr. G. E. Lewis, of the NW, to Mr. J. J. Stablein, of the BN, with copies to a number of other persons, including Mr. R. J. Murphy, of the BN, and Mr. G. L. King, of the UP, Mr. Lewis states, in part:

    "The Movement started when the Car was placed for loading (Rule 1(h)) and stopped when the Accident occurred (Rule 2). Since it was known at the time the Accident occurred that BN would get the outbound loaded road haul, BN was the Originating Carrier (Rule 1(i)) and the Possessing Carrier (Rule 1(k)) just as if BN itself had placed the Car for loading.

    UP, as a Switching Carrier (Rule 1(o) at origin cannot be an Originating Carrier nor a Possessing Carrier. NW's only involvement is as owner of the Car, and there are no facts which indicate that Rule 14(a) or (b) would apply."

    The BN did not, at any time ever dispute the fact that they knew they were to get the outbound loaded road haul, after this Car was loaded, nor did they, in their position paper, submitted to the Arbitrators, deny it and, in fact, did not raise it.

    In their position paper, requested by the Appeal Arbitrators, the BN " for the first time " refer to lack of documentation to support a finding that BN was aware they were to receive Car NW 71695 as an outbound load, or had knowledge of t his fact prior to the accident.

    Following the decision of the arbitrators, a dispute arose among the three Carriers involved, concerning the filing of further position papers, and oral argument before the Appeal Arbitrators. It is our opinion that Rule 40(c) is very clear on this point and a further submission of brief and argument from the parties involved will only be considered if the parties are requested by the Appeal Arbitrators to make such a submission. In this case, the parties were requested by the Appeal Arbitrators to submit briefs, pursuant to Rule 40 (c) and were advised that no new facts and documentation would be considered by the Appeal Arbitrators in accordance with Rule 39.

  7. Conclusions

    It is our opinion that the evidence in this case is sufficient to hold BN had implied notice at the time of the accident that BN was to receive NW 71695 loaded for road haul. Therefore, BN was the Originating and Possessing Carrier at the time of the accident and pursuant to Rules 10 and 12 of the Intra-Industry Claims Agreement shall bear full responsibility for all costs. Accordingly, the decision of the Arbitrators in Arbitration Award No. 6 is affirmed.

  8. Distribution of Liability

    Amount arbitrated $332,243

    BN Liable Yes X No   Amount $332,243
    UP Liable Yes X No   Amount $0
    NW Liable Yes X No   Amount $0

    The majority of the Appeal Arbitrators concur with the findings of the Arbitrators and hold Burlington Northern completely responsible for the entire cost of this accident.

    Mr. A. L. Wickard, General Claims Agent, Southern Pacific Transportation Company, dissents.

    Dated this 18th Day of November 1984

    S. R. Walker
    Manager, General Claims
    Canadian National Railway Company

    C. W. Baum
    General Claims Agent
    Canadian Pacific Ltd.

    D. Lang
    System Manger-Claims
    Chessie System

    C. A. Hartz, Jr.
    General Attorney
    Richmond, Fred. & Potomac RR

DISSENT OPINION:

  1. DATE AND PLACE OF ACCIDENT AND NAME OF CLAIMANT:

    September 30, 1980
    Omaha, Nebraska
    Raymond L. Vinsonhaler

  2. NAMES OF CARRIERS PARTY TO ARBITRATION:

    Burlington Northern Railway Company, hereinafter referred to as 'BN',
    Norfolk Southern Corporation (known as 'Norfolk and Western Railway Company' on date of accident), hereinafter referred to as 'NW',
    Union Pacific System (known as 'Union Pacific Railroad company' on date of accident), hereinafter referred to as 'UP'.

  3. STATEMENT OF UNCONTESTED FACTS WITH REGARD TO ACCIDENT:

    This case involves an industry employee by the name of R. L.Vinsonhaler, who fell from a brake platform of a car he was attempting to move to a spot for loading and sustained an amputated left arm. The incident occurred at his place of employment at the Con Agra, Inc., facility in Omaha, Nebraska.

    Car NW 71695 traveled as an empty from the Con Agra, Inc., facility at Gary, Indiana to the Con Agra facility at Omaha, Nebraska. This move was covered by Chicago, South Shore and South Bend Railroad Waybill No. 500 dated 9/20/80. The Waybill had the remark 'Empty cov. Hoppers retd. Home'. The rate was free. The Waybill originally indicated the car was routed from Gary, Indiana to Fremont, Nebraska, via Chicago, South shore, and South Bend Railroad and BN Railway Company. While enroute, BN was notified by Con Agra the car should be sent to Omaha, Nebraska for UP delivery. Waybill No. 500 was altered to indicate this change and also indicated the change enroute took place at Lincoln, Nebraska on 9/23/80. The BN interchanged the car to UP at Gibson Yard in Omaha on 9/24/80. The car was stored on a UP yard track until it was moved by UP and spotted on a UP owned track which serves the Con Agra facility in Omaha. The car was spotted at 4:00 a.m. on 9/28/80.

    The Con Agra, Inc. facility at Omaha, Nebraska is a flour mill and railroad cars are loaded at this facility with flour for outbound shipment. UP owned tracks are on the west side of the mill and the file indicates trackage on the east side are referred to as BN tracks. Sacked flour is loaded on the BN side and bulk flour is loaded on the UP side. The trackage on both sides of the mill are on descending grades to the north. Apparently, it is custom and practice for the railroads to spot cars south of the actual spot for loading at the facility. When Con Agra is ready to load a specific car, a Con Agra employee releases the brake and allows the car to roll on the descending grade and then stops the car using the car's brake at the actual spot for loading. After the car is loaded, the Con Agra employee again releases the car's brake and allows the car to roll to the north of the mill and then stops the car again with the car's brake. Loaded cars placed by the industry to the north of the mill are switched out by the railroad at the industry's request.

    The car involved, NW 71695, was spotted by UP south of the actual spot for loading along with other cars. The file does not indicate any railroad employee had a problem with the brakes of car NW 71695 up to this point. A Con Agra employee, by the name of Herman Reynolds, moved car NW 71605 about a car length on 9/29/80. Mr. Reynolds reported he did not have any problems stopping car NW 71695 with the car's brakes.

    On 9/30/80, two employees of Con Agra working on the UP side were having difficulty moving two loaded cars off the spot for loading. Mr. Vinsonhaler normally worked the BN side but was caught up with his work so decided to go over to the UP side and assist. The next empty car in line to be spotted for loading was NW 71695. It was about a car length and half away from the spot for loading. As soon as the other employees got the two loaded cars off the loading spot, Mr. Vinsonhaler states he released the brake of car NW 71695 by flipping the lever behind the wheel away from him. The car started rolling and when he allegedly tried to pull the lever back so he could tighten the brake, the lever would not come back. Mr. Vinsonhaler states he tried three or four times to pull the lever back, but it would not come back. Mr. Vinsonhaler states in trying to pull the lever his hand slipped off the lever and he lost his balance and fell off the car. Mr. Vinsonhaler was on the leading end of the car and he fell with his left arm on the rail which was severed by the car's wheels. The incident occurred about 7:00 p.m. on 9/30/80. Car NW 71695 rolled to a joint with the two loaded cars just moved off the loading spot by the other Con Agra employees.

    A Con Agra employee by the name of Brian Stanesick stated he observed Mr. Vinsonhaler having difficulty with the brake lever prior to falling off the car. Another Con Agra employee by the name of Lloyd Skinner reported he observed Mr. Vinsonhaler pulling the brake lever and the lever appeared to stick about halfway. He observed Mr. Vinsonhaler 'jiggling' the brake lever and then Mr. Vinsonhaler's hand slipped off the brake lever and he lost his balance and fell off the car.

    Neither UP, BN nor NW were notified of the accident at this time.

    The file contained a copy of UP's form No. 2623 entitled 'REQUEST FOR SWITCHING CAR RELEASE'. The form was dated 9/30/80 and indicates the request was received from Con Agra at 4:06 p.m. This form indicates car NW 71695 was to be pulled as a load along with three other loaded cars. Under Junction, Road Destination, City and State or Industry on the form, it indicates the three other cars were going to Illinois Central at Council Bluffs, Iowa. The form indicated car NW 71695 was going to BN, at Omaha.

    According to a memorandum in the file by W. H. Kinney (apparently a UP employee) car NW 71695 was pulled by UP on 10/1/80 at 3:00 a.m., but then ordered back by Con Agra at 8:06 a.m. on 10/1/80. According to this memorandum, car NW 71695 was reset as an empty at the Con Agra facility at 4:00 a.m. on 10/2/80.

    A Con Agra employee by the name of Gene Glinsmen claims he inspected the brake of car NW 71695 ON 10/1/80. He states the car was spotted south of the spot for loading at the time of his inspection. He states the brake would release but not reset when he tried to pull the lever back by hand. He stated after trying about four or five times he was able to pull the lever back by moving the brake wheel at the same time. Other Con Agra employees by the names of Lloyd Skinner, Chris Nelson and Brian Stanesick witnessed this inspection.

    The UP was notified of the accident on 10/2/80 about 8:15 a.m. The UP dispatched General Car Foreman, Mr. Rick Phillippie, to inspect car NW 71695. Mr. Phillippie completed the inspection on 10/2/80 and filled out form 2110 entitled 'REPORT OF INSPECTION'. The form indicates 'Good hand brake ' tested by RLP chain type. UP Claims Department conducted the preliminary investigation including obtaining statements of witnesses and gathering evidence. The UP took the car out of service and moved it to Council Bluffs South Yard on Track No. 18.

    The file indicates BN and NW were first notified by UP of the accident on 10/9/80.

    The file contains some correspondence between the carriers involved concerning further brake testing of car NW 71695, but the file does not indicate further testing was done or the results of any further testing.

    The file contains a form with the title 'CON AGRA INC.'. This form is dated 9/30/80. The form has a section indicating 'UP side' and a section indicating 'BN side'. This form is apparently filled out by a Con Agra employee. There are car numbers and names of shippers and cities indicated on this form. This form will be referred to as the Con Agra form in discussions that follow.

    A lawsuit was filed on behalf of Mr. Vinsonhaler and the case was settled 4/14/83 releasing all three carriers involved in this appeal arbitration. A $332,243.00 settlement was split three ways between UP, NW and BN.

  4. CONTENTIONS OF CARRIERS:
    • Burlington Northern Railway Company

      The BN feels there was no documentation produced by any of the carriers indicating what the movement of NW 71695 was to be after 9/27/80 as the car sat in storage on UP tracks in Omaha, Nebraska. BN feels it is complete conjecture and speculation as to the movement of NW 71695 after 9/27/80 and as to which carrier was the originating carrier. The BN feels that custom and practice would dictate that Con Agra, at the very least, would prepare a bill of lading for NW 71695 to a UP Agent as to the movement, freight, and commodity of NW 17695. BN points out there was no such document in the record. BN further points out custom and practice would dictate that UP, after receiving a bill of lading, would prepare a Waybill. BN points out no such Waybill is in the record. The BN feels the 'REQUEST FOR SWITCHING CAR RELEASE' form prepared by the UP merely shows that car NW 71695 was pulled by UP; to be placed on BN track at Omaha. BN points out this form does not state the movement of NW 71695 and that BN may switch the car to another carrier. The BN feels the Con Agra form gives nothing more than absolute speculation as to where car NW 71695 was to move. The BN admits there are the initials 'BN' on the form but contend there are lines through the 'BN' initials indicating BN was not to be the carrier. The BN admits there are some additional stations written in columns below the lined out initials of BN, but it is unclear from those stations as to where NW 71695 was to move. The BN contends there is nothing in the file to indicate that BN had any knowledge as to routing of car NW 71695 after 9/27/80. The BN feels they would have to be notified they were to receive the car for an outbound road haul for the IICA to apply.

      The BN takes the position the car was IN TRANSIT at the time of the accident. BN feels there was a contractural arrangement between UP and Con Agra, either written or oral, which would make the Con Agra employees moving the car on UP tracks agents for UP. The BN feels the car involved was not spotted for loading at the time of the accident and was put in motion by an agent of UP so, therefore, the car was IN TRANSIT and IICA is not applicable.

      The BN feels there was no ACCIDENT as defined by the IICA. Not only does BN feel the car was IN TRANSIT, but the injury was not caused by a DEFECT. BN points out all the evidence in the record, including inspections and test results by UP show there was no DEFECT in the handbrake. The BN feels the fact there was an alleged DEFECT does not make RULE 1(a) apply. Therefore, with no DEFECT, the BN feels the IICA does not apply.

    • Union Pacific System

      The UP contends they were a SWITCHING CARRIER at ORIGIN in the involved incident. The UP states they would not receive any portion of the through freight rate. The UP feels they Con Agra form indicates Con Agra intended to ship car NW 71695 TO 'Henkel, Keokuk', a point served by BN. The UP feels when they spotted car NW 71695 at Con Agra on 9/28/80 the car was placed for loading and the IN TRANSIT status of the car ended. The UP feels the Con Agra employees were not acting as agents for UP when they moved the car on the UP owned track to the actual spot for loading. The UP states there was no agreement in effect between UP and Con Agra that would apply to the circumstances of this incident.

      The UP feels Con Agra made the determination prior to the accident that BN would be the line haul carrier following loading of car NW 71695 and BN was the ORIGINATING CARRIER and POSSESSING CARRIER when the incident occurred.

      The UP was willing to stipulate that car NW 71695 had a defective brake and that the defect was not caused by the shipper or it's agents or employees.

      The UP felt BN was obligated under RULE 19 of the IICA to defend the UP and NW.

      The UP feels BN was the only carrier involved in the movement and, under RULE 12 of the IICA, should be responsible for any cost to the carriers resulting from the accident.

    • Norfolk Southern Corporation

      The NW contends a MOVEMENT was involved and begun with the placing of the car for loading by UP per RULE 1(h), and ended when the accident occurred.

      The NW feels no carrier employees were involved in the movement when the incident occurred, the injured party was an employee of the industry or customer and there was no evidence to indicate an agency relationship between Con Agra employees and UP. NW feels the car was not IN TRANSIT as defined in RULE 1(g).

      The NW feels it is not necessary to have proof a DEFECT exists for the IICA to apply and that under RULE 1(a)3 only an allegation of a DEFECT is required.

      The NW states the IICA is clear the SWITCHING CARRIER at ORIGIN is not the POSSESSING CARRIER, and the CARRIER, who gets the outgoing line haul becomes the POSSESSING CARRIER, and the ORIGINATING CARRIER.

      The NW points out the real question in this case is whether prior knowledge by BN that it would get the car back under load is necessary in order to apply the IICA, or whether determination from the industry as to how it had intended to route the shipment is sufficient. The NW felt this question should be answered by the Arbitrators and took no further position in this case.


  5. FINDING OF FACT
    • There was an ACCIDENT as defined in RULE 1(A).
    • The CAR involved was not IN TRANSIT as defined in RULE 1(g).
    • A MOVEMENT had begun with the placing of the CAR by UP for loading as defined in RULE 1(h).
    • UP was a SWITCHING CARRIER as defined in RULE 1(o). UP was the SWITCHING CARARIER at ORIGIN.
    • UP was not the ORIGINATING CARRIER as defined in RULE 1(i).
    • UP was not the POSSESSING CARRIER as defined in RULE 1(k).
    • There was a lack of sufficient evidence presented to the Arbitrators to determine routing of car NW 71695 as a load.
    • There was no evidence presented to establish BN was aware that they would receive the outbound load as a line haul carrier.
    • The IICA cannot be applied.

  6. FINDINGS AND DISCUSSIONS OF THE PORTIONS OF AGREEMENT APPLICABLE TO CASE:

    The first issue to be resolved is whether or not there was an accident as defined in RULE 1(a). No one contested the fact there was a personal injury to an OTHER PARTY allegedly caused by the involved occurrence so RULE 1(a)1 was satisfied.

    Whether or not the CAR involved was IN TRANSIT per RULE 1(a)2 is contested. IN TRANSIT is defined under RULE 1(g) as '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 the same consignee and CARS on interchange tracks'. The BN argues the Con Agra employees were working as agents of a carrier (UP), in preparing the car to be put in motion. The file did not contain any evidence to indicate UP had any control over employees of Con Agra employees were acting as agents for UP when they moved cars. It is the opinion of NW, UP and the Arbitrators that a MOVEMENT had begun. MOVEMENT is defined in RULE 1(h) as 'A single journey beginning with the placing of a CAR by a POSSESSING CARRIER, or the appropriation of a CAR by a shipper for loading, through it's loading, dispatch, interchange, or delivery to consignee, including the period after the CAR is made empty, and until the CAR is withdrawn empty from the consignee, or is assigned to consignee for another MOVEMENT, or is appropriated by consignee for another MOVEMENT'.

    ARBITRATION NO. 5 had some similar circumstances. The carrier delivered a loaded car to an industry and an industry employee was riding the car while it was being moved by the industry locomotive when the industry employee was injured. The majority of the Arbitrators ruled the car was not IN TRANSIT and that a MOVEMENT existed.

    I agree a MOVEMENT as defined had begun when UP placed the car on the track at the request of Con Agra for the purpose of loading the car for an outbound MOVEMENT.

    Whether or not RULE 1(a)3 is satisfied to establish there was an ACCIDENT is also contested. UP takes the position there was a DEFECT, BN takes the position there was no DEFECT, and NW takes the position only an allegation of a DEFECT is required. The investigation revealed that Mr. Vinsonhaler and one other employee at Con Agra allege a defect when they operated the brake. Three other Con Agra employees witnessed the difficulty with the brake. The UP had a car inspector inspect the car after the incident and found the brake worked without problems. A Con Agra employee operated the brake prior to the incident and found it functioned properly. The UP Switchman spotting the car did not report a problem with the brake. It is obvious whether or not there was a defect would be a jury decision in the event the case went to trial.

    ARBITRATION No. 4 and ARBITRATION No. 5 involved alleged DEFECTS but the DEFECTS were not admitted by the CARRIERS. The majority of the Arbitrators felt the presence of an alleged DEFECT kept the case in the framework of the IICA.

    RULE 1(a)3 states "The occurrence is alleged to have been caused by a DEFECT". There was an alleged DEFECT so I feel RULE 1(a)3 is satisfied.

    The UP states they were only to receive a switching fee for handling of the car involved. There is nothing in the file to contradict this, and neither BN or NW contested UP was a SWITCHING CARRIER. Therefore, I feel UP should be considered the SWITCHING CARRIER at ORIGIN, as defined in RULE 1(o), and not the ORIGINATING CARRIER as defined in RULE 1(i), and not the POSSESSING CARRIER as defined in RULE 1(k).

    There was no evidence presented to indicate a repair of the CAR by a CARRIER produced a DEFECT or concealed a DEFECT causing an ACCIDENT within 90 days after the CAR was placed in service following the repair so RULE 14 does apply and RULE 11 would apply. Under RULE 11, ownership of the car alone would not create any liability for NW.

    The major problem to resolve in this case is whether or not there was a POSSESSING CARRIER, as UP could not be considered the POSSESSING CARRIER as they were the SWITCHING CARRIER at ORIGIN. The Arbitrators felt there was sufficient evidence to establish BN was the ORIGINATING CARRIER and POSSESSING CARRIER. I feel there was a lack of sufficient evidence presented to determine the identity of the ORIGINATING CARRIER or POSSESSING CARRIER.

    Mr. G. E. Lewis, of NW, in a letter to UP and BN dated 6/2/83 pointed out the necessity to obtain complete circumstances and prior histories of cars being placed in the industry under similar conditions as to those involved in the injuries to Mr. Vinsonhaler. He wanted to know if there was a 'pool' car arrangement or was the car being placed considered to be in assigned service. He wanted to know if the railroads were aware BN would get the outbound load haul prior to placement of the car at Con Agra or if it was determined after the car was placed. Mr. Lewis felt a decision could not be made concerning settlement of the case under the terms of the IICA without this information. The file does not contain answers to these questions or any response to this letter. The UP felt Con Agra made the determination prior to the accident that BN would be the line haul carrier, but offered only speculative evidence to support this. UP states the BN re-routed the car on its own lines and provided the car to Con Agra via UP which acted solely as a SWITCHING CARRIER. The question this statement leaves is why UP stored the car at Omaha four days from the time BN turned it over to UP until UP delivered the car to Con Agra. It appears to me there may have been some type of 'pool' car arrangement and leaves a doubt if it was known what car would go to where prior to actual loading of the car. I feel the questions raised by Mr. Lewis should have been answered before a decision was made.

    The UP contends the REQUEST FOR SWITCHING-CAR RELEASE completed prior to the accident is sufficient to show BN would get the road haul. This form is dated 9/30/80 and timed 4:06 p.m. and indicates they were to pull NW 71695 as a load and turn it over to BN at Omaha. The BN feels this form alone does not reflect BN would get the line haul and they may switch it over to another railroad. I agree with BN that this form could not be used to establish routing of the car as a load.

    The Con Agra form is a real problem. It is a very illegible copy with much of the written items not copying completely and there is no evidence in the file, other than only pure speculation, to explain what the form means. The form is dated 9/30/80, and has Con Agra, Inc. printed at the top. There are seven columns of rectangular boxes. At the top of the most left column is printed 'UP side' and halfway down this column is printed 'BN side'. The next column to the right has 'Track1' and 'Track 2' indicated on the top half and 'Track 4' and 'Track 3' indicated on the bottom half. The top of the third column to the right, which is indicated as UP side, has what appears to have been written 'BN 582'. There are extra lines across the 'N' of 'BN' to indicate it probably was crossed out. In this column, under what may be 'BN 582', using one's imagination, NW 71695 may be written. Under this, it appears there is 'Henkel' with another completely illegible word written in the next box. The next box under has two words with again using one's imagination, it may say 'Keokuk' but the other word is completely illegible. The next box under this has what slightly appears to be numbers and there may be lines drawn through them. The next box under this has what appears to be 'NW' and numbers with a line drawn through them. I do not feel this form from Con Agra alone can be used to establish anything.

    The UP contends the REQUEST FOR SWITCHING CAR RELEASE form and the Con Agra form are sufficient to establish BN would get the outbound load haul. The BN felt there was a lack of sufficient evidence to establish they would get the outbound load haul. The BN felt there was a lack of sufficient evidence to establish they would get the outbound load haul.

    It was pointed out by the Arbitrators that BN, in their statement of position did not deny they would receive the outbound haul from Omaha to Keokuk. The Arbitrators felt the UP REQUEST FOR SWITCHING-CAR RELEASE form, the Con Agra form, and the fact BN did not deny they would get the outbound haul are sufficient evidence to establish BN would be the ORIGINATING CARRIER and POSSESSING CARRIER.

    There was no evidence presented to establish BN knew they were to get the outbound load haul.

    Mr. Jamison, one of the drafters of the IICA, gave a talk at an annual meeting in Louisville in 1976 and in that presentation states "Another problem arose involving accidents which occurred at point of origin where a SWITCHING CARRIER was involved. In such cases, the originating load haul CARRIER is the POSSESSING CARRIER. Accordingly, it is now generally understood that unless a CARRIER which delivers an empty CAR to a SWITCHING CARRIER at point of ORIGIN where an ACCIDENT occurs has knowledge the same CAR will be returned to it by the switcher after loading, the agreement cannot be applied, because the identity of ORIGINATING CARRIER would not be known when the ACCIDENT occurred."

    If Con Agra had notified BN there were to get the outbound load haul it would appear UP would have established this very important issue in their investigation and contacts with Con Agra employees.

    I do not feel the fact the claimsman preparing the original position statement for BN did not deny BN had knowledge they would receive the outbound load haul is sufficient evidence to establish someone at BN knew they would get the outbound load haul. A claimsman can only refer to evidence presented, or established by their investigation, and cannot be positive he is aware of everything that everyone working for his company knows.

    RULE 37 states: "Paying CARRIER must submit a copy of the complete file in the dispute to each of the arbitrators within thirty days after they are finally assigned. The file shall include all statements, photographs, medical reports, transcripts of testimony, and other documents of all kinds which are relevant to the issues". I take this to mean the arbitrators could have requested more investigation or documentation to confirm which railroad would get the outbound load haul.

    RULE 38 states: "If COSTS paid in the aggregate should have exceeded $25,000.00, any interested CARRIER may at this time request in writing the right to produce before the panel of arbitrators witnesses who shall be subject to cross-examination by other interested CARRIERS." The case involved exceeded $25,000.00, so if any CARRIER with interest in this case could have found a witness who would state they told anyone at BN that BN would get the outbound load haul, the witness could have been presented to the arbitrators.

    No additional evidence was requested and no additional witnesses were presented. Following the arbitration award, BN, in their position statement to the appeal arbitrators, pointed out there was no evidence presented to indicate BN had knowledge they were to get the outbound load haul.

    RULE 39 states: "the record before the appeal arbitrators, if there should be an appeal arbitration, shall consist of the record before the arbitrators and the award of the arbitrators". Therefore, the appeal arbitrators could not request additional investigation or documentation.

    An important issue in this case and future cases of this type is as to whether or not a Waybill must be prepared and should be the only evidence used to establish who would get the outbound load haul. UP contends this would eliminate a large number of third-party claims from coverage of the agreement. BN claims Waybills are prepared in circumstances such as this. RULE 3 states: "Upon receipt of notice of an ACCIDENT, the POSSESSING CARRIER shall forward copy of initial report, together with copy of waybill concerning CAR MOVEMENT, to the owner of the CAR". This rule indicates the necessity of a waybill. If a waybill is required, it would eliminate speculation and possible unjust decisions in IICA matters. I feel the issue as to whether or not a Waybill is required to establish the identity of CARRIERS or RAILROADS involved in a movement is a question that should be investigated by the Administrative Committee of the IICA to determine the position all carriers involved in the IICA would take in this matter.

    The question was raised as to whether or not prior knowledge by a CARRIER that they would receive an outgoing road haul load when an accident occurs while a SWITCHING CARRIER is a POSSESSING CARRIER is necessary in order to apply the IICA or whether a determination from the industry as to how it intended to route the shipment is sufficient. It appears to me this issue was clarified in Mr. Jamison's talk at the Annual Meeting in 1976 as referred to previously in this opinion and it is necessary to have the prior knowledge. I feel the Administrative Committee for the IICA should consider incorporating the position Mr. Jamison stated into the agreement.

    The history of the IICA states under No. 2: "The rules should endeavor to place responsibility for losses where it reasonably belonged without resort to legal niceties, including proration of losses among the parties when fault could not be found with one of them." If a jury was to decide there was a defect in the involved case, and there was railroad negligence, they would not, in all probability, hold BN completely responsible. In this case, I do not feel the evidence was strong enough to divert from placing the responsibility for damages from where a jury would probably place it if they felt there was railroad negligence in order to make the IICA applicable and therefore hold BN responsible for one hundred percent of the damages.

    The arbitrators concluded RULES 10 and 12 apply. RULE 10 states: "Costs of ACCIDENTS shall be borne only by CARRIERS involved in the MOVEMENT during which such ACCIDENTS occur, except as provided in RULE 14". I feel this rule would apply if the identify of the CARRIERS had been established. RULE 12 states: "The ORIGINATING CARRIER shall bear 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, except as provided in Ruled 5 and 14." It is my opinion RULE 12 cannot apply in this case even if the identity of the CARRIERS had been established. The portion of the quote I underlined above was not established in this case; in fact, just the opposite. The UP switch crew did not report a problem with the brake when they placed it for loading. The Con Agra employee moved the car and stopped it with the brake and had no difficulty after the car was placed. If a defect did exist when Mr. Vinsonhaler fell off the car it was not shown to exist in the CAR when it was placed.

    Following the Appeal Arbitration request by BN, a dispute arose as to whether or not additional position papers should be presented to the appeal arbitrators. RULE 40(c) states: "The provisions of RULE 40(a) and (b) shall also apply to appeal arbitrators, except that appeal award shall be rendered within sixty days after receipt of the record or after submission of brief and argument if requested by appeal arbitrators". I take the position this rule shows the appeal arbitrators have the authority to request additional briefs and arguments. This same dispute arose in APPEAL ARBITRATION NO. 1 and the majority of the appeal arbitrators felt additional position statements cannot be filed with appeal arbitrators unless requested by the appeal arbitrators. In the case involved herein, all appeal arbitrators requested additional briefs. The BN also requested the right to present oral arguments to the appeal arbitrators. It is my opinion there are no provisions in the IICA to provide oral arguments to the appeal arbitrators.

  7. CONCLUSIONS:

    There was a lack of sufficient evidence to establish the identity of the ORIGINATING CARRIER and POSSESSING CARRIER at the time of the accident so the Intra-Industry Claims Agreement cannot be applied and the appeal arbitration should be dismissed.

    Dated this 28th day of December, 1984.

    A. L. Wickard
    Appeal Arbitrator