B-127047, JUN. 26, 1956

B-127047, JUN. 26, 1956

TO READING COMPANY:

REFERENCE IS MADE TO YOUR FILE SA-K-49750, REQUESTING REVIEW OF OUR SETTLEMENT IN CLAIM NO. TK-096735, DISALLOWING YOUR SUPPLEMENTAL BILL NO. 49750-B FOR $602.30 AS TRANSPORTATION CHARGES ALLEGED TO BE DUE FOR THE MOVEMENT OF A CAR OF HIGH EXPLOSIVES FROM SANDUSKY, OHIO, TO PLUM BROOK, OHIO, AND RETURN TO SANDUSKY. THE SERVICE IN QUESTION WAS PERFORMED SUBSEQUENT TO THE DERAILMENT OF THE CAR WHILE EN ROUTE TO SEIPLE, PENNSYLVANIA, FROM ELWOOD, ILLINOIS, ON GOVERNMENT BILL OF LADING WV- 3898747, DURING NOVEMBER 1944.

IT IS YOUR CONTENTION THAT THE GOVERNMENT IS RESPONSIBLE FOR THE ADDITIONAL TRANSPORTATION EXPENSE INCURRED FOR THE REASON THAT THE DERAILMENT WAS DUE TO A BURNED JOURNAL WHICH YOU STATE ,WAS CAUSED BY THE GOVERNMENT OVERLOADING THE CAR," AND BECAUSE AFTER THE DERAILMENT, AND UPON ARRIVAL OF THE CAR AT TOLEDO, OHIO, AN INSPECTOR OF THE BUREAU OF EXPLOSIVES ORDERED THE CAR TO BE SENT TO THE PLUM BROOK ORDNANCE DEPOT FOR RECONDITIONING BEFORE FORWARDING TO ORIGINAL BILLED DESTINATION. WHILE THE DERAILMENT IS STATED AS BEING A RESULT OF THE OVERLOADING OF THE CAR, AN ANALYSIS OF THE RECORD IN THIS CASE INDICATES THAT THE RESPONSIBILITY FOR THE DERAILMENT, AND THE NECESSARY RECONDITIONING RESTS UPON THE CARRIERS.

THE WAYBILL ISSUED TO ACCOMPANY CAR ATSF 137756 SHOWS THAT THE CAR, CONTAINING 2,469 BOXES OF HIGH EXPLOSIVES, WAS DELIVERED TO THE ALTON RAILROAD AT ELWOOD, ILLINOIS, WITHOUT REFERENCE ON THE BILL OF LADING AS TO THE ACTUAL WEIGHT TENDERED. UPON ARRIVAL AT JOLIET, ILLINOIS, THE CAR WAS WEIGHED ON THE ALTON RAILROAD SCALE, AND THE SCALE TICKET INDICATES A GROSS WEIGHT OF 173,980 POUNDS, THE TARE WEIGHT BEING 48,200 POUNDS, MAKING A NET WEIGHT OF 125,780 POUNDS. WHILE THIS OFFICE HAS NO INFORMATION AS TO THE STENCILED CAPACITY LOAD LIMIT ON THE CAR, IT IS REPORTED TO BE 120,800 POUNDS, THUS CREATING AN OVERLOAD OF 4,980 POUNDS. NOTWITHSTANDING THIS OVERLOAD, APPARENT AT THE TIME OF WEIGHING, THE ALTON RAILROAD MOVED THE CAR TO CHICAGO, ILLINOIS, FOR DELIVERY TO THE NEW YORK CENTRAL RAILROAD FOR FORWARDING. ALTHOUGH THE NEW YORK CENTRAL RAILROAD HAD NOTICE OF THE OVERLOAD FROM THE WEIGHT TICKET ATTACHED TO THE WAYBILL, IT FORWARDED THE CAR; AND EVEN AFTER THE CAR WAS REPORTED IN BAD ORDER AT ELKHART, INDIANA, REQUIRING REPAIRS, THE CAR WAS MOVED FORWARD WITH THE RESULT THAT THE CAR WAS DERAILED IN OHIO.

FROM WHAT IS STATED IN AN ORDER OF THE INTERSTATE COMMERCE COMMISSION DATED SEPTEMBER 19, 1945, IN THE MATTER OF THE PETITION OF THE CARRIERS PARTIES TO THE CONSOLIDATED FREIGHT CLASSIFICATION NO. 16 "TO ADJUST CHARGES ON OVERLOADED CARS FROM WHICH A PORTION OF THE LADING WAS TRANSFERRED TO ANOTHER CAR ENROUTE," IT APPEARS THAT EFFECTIVE AUGUST 18, 1945, WHEN OVERLOADED CARS ARE FOUND IN TRANSIT, THE CARRIERS TRANSFER THE OVERLOADED PORTION OF THE CAR INTO ANOTHER CAR. IN THE ABSENCE OF TARIFF PROVISIONS REQUIRING OTHERWISE THE CARRIERS ARE AUTHORIZED TO ASSESS CHARGES ON THE WEIGHT REMOVED TO THE SECOND CAR ON THE BASIS OF THE CARLOAD RATE AT ACTUAL WEIGHT, BUT NOT LESS THAN 50 PERCENT OF THE APPLICABLE CARLOAD MINIMUM WEIGHT OF THE COMMODITY. IN THIS INSTANCE, WHEN THE ALTON RAILROAD ASCERTAINED THAT THE CAR WAS OVERLOADED AT A POINT BUT 8 MILES FROM THE SHIPPING POINT, IT PROPERLY SHOULD HAVE EITHER RETURNED THE CAR TO THE ELWOOD ORDNANCE PLANT FOR RELOADING, OR UNLOADED PART OF THE CONTENTS INTO ANOTHER CAR. IT SHOULD HAVE BEEN OBVIOUS THAT THE CAR WOULD BE SUBJECTED TO INCREASED AVOIDABLE RISKS IN TRANSPORTATION, ESPECIALLY AS IT CONTAINED HIGH EXPLOSIVES, WHICH, OF COURSE, WERE CAPABLE OF PRODUCING AN ACCIDENT OF AN EXTREMELY SERIOUS NATURE. UNDER THE CIRCUMSTANCES THE CARRIERS HAD THE RIGHT AND DUTY TO REFUSE TO TRANSPORT THE SHIPMENT (WASTE MATERIAL DEALERS ASSOCIATION V. CHICAGO, R.I. AND P.RY. CO., 226 I.C.C. 683, 688), AND SINCE THEY UNDERTOOK TO TRANSPORT THE OVERLOADED CAR AFTER BEING APPRIZED OF THE RISK, THEY CANNOT PROPERLY CHARGE THE SHIPPER FOR INCIDENTAL EXPENSES OCCASIONED BY THEIR ACTION. SUCH A VIEW IS CONSISTENT WITH THE STATEMENT BY THE SUPREME COURT OF THE UNITED STATES IN HANNIBAL RAILROAD V. SWIFT, 79 U.S. 262, 273, TO THE EFFECT THAT THE DUTY RESTS UPON THE COMMON CARRIER TO SEE THAT THE PACKING AND CONVEYANCE ARE SUCH AS TO SECURE ITS SAFETY, AND THAT THE ,CONSEQUENCES OF HIS NEGLECT IN THESE PARTICULARS CANNOT BE TRANSFERRED TO THE OWNER OF THE PROPERTY.'

IN THIS CONNECTION, IT SHOULD BE NOTED THAT SECTION 589/A) OF AGENT TOPPING'S TARIFF NO. 4, I.C.C. NO. 4, PUBLISHING THE INTERSTATE COMMERCE COMMISSION REGULATIONS FOR THE TRANSPORTATION OF EXPLOSIVES AND OTHER DANGEROUS ARTICLES, PROVIDES THAT THE CARRIERS MUST NOT TAKE A CAR CONTAINING EXPLOSIVES FROM A STATION, SIDING, TRANSFER STATION, INTERCHANGE POINT, OR YARD, UNLESS THE CAR IS PROPERLY PLACARDED AND "UNLESS THE CAR IS IN PROPER CONDITION.' THE NEW YORK CENTRAL RAILROAD WAS ALSO AT FAULT IN ACCEPTING THE CAR FROM THE ALTON RAILROAD IN THE OVERLOADED CONDITION, AND IN MOVING THE CAR FORWARD WITHOUT TAKING APPROPRIATE STEPS TO CORRECT THE OVERLOADED CONDITION OF THE CAR. SECTION 598/A) OF TOPPING'S TARIFF NO. 4, SPECIFICALLY STATES THAT THE OUTSIDE OF CARS CONTAINING EXPLOSIVES OFFERED BY CONNECTING LINES MUST BE CAREFULLY INSPECTED BY THE RECEIVING LINE, AND SUCH CARS MUST NOT BE FORWARDED UNTIL "ALL DISCOVERED VIOLATIONS HAVE BEEN CORRECTED.' IT IS REASONABLE TO ASSUME THAT THE NEW YORK CENTRAL RAILROAD WAS AWARE OF THE OVERLOAD BY REASON OF THE WEIGHT TICKET ATTACHED TO THE WAYBILL OR FROM A PROPER INSPECTION OF THE CAR. EVEN IF THE OVERLOAD WAS NOT DETECTED UPON RECEIPT OF THE CAR AT CHICAGO, THE RECORD SUGGESTS THAT IT WAS NOTED AT ELKHART, INDIANA, WHERE THE EXCESS PART OF THE CONTENTS COULD HAVE BEEN TRANSFERRED BEFORE THE ACCIDENT.

IN VIEW OF THE FOREGOING IT APPEARS THAT THE CAUSE OF THE DERAILMENT, RESULTING IN THE ADDITIONAL TRANSPORTATION EXPENSE, WAS A MATTER OVER WHICH THE CARRIERS HAD CONTROL AND WAS DIRECTLY DUE TO THE FAILURE OF THE CARRIERS TO EXERCISE THE PROPER PRECAUTIONS AND TO COMPLY WITH THE PERTINENT RULES TO TOPPING'S TARIFF NO. 4. THE SETTLEMENT DISALLOWING YOUR SUPPLEMENTAL BILL FOR $602.30 WAS THEREFORE PROPER AND IS SUSTAINED.