Castle, Chief Judge, and Fairchild and Cummings, Circuit Judges.
FAIRCHILD, Circuit Judge.
The United States brought actions against Terminal Railroad Association of St. Louis (TRRA) to recover statutory $250 penalties for failure to comply with ICC regulations requiring inspection of power brakes on trains.*fn1 Judgment was entered for TRRA and the government appeals.
TRRA is a corporation, the stock of which is owned by several railroads serving the St. Louis gateway from the east and by others serving from the west. It owns a bridge over the Mississippi, and trackage and yards on both sides of the river, in St. Louis, Missouri, and East St. Louis, Illinois. It is principally a terminal and interchange facility for other railroads. The railroads which own stock have the right to use its tracks.*fn2
The parties agreed to treat each of two train movements as representative of several counts. The circumstances are not in dispute. The issue concerns the applicability of the regulations.
The New York Central movement. A train of 60 freight cars, hauled by a New York Central locomotive, and with a New York Central caboose attached, arrived over the New York Central from Indianapolis, at the legal boundary between the New York Central and TRRA tracks in East St. Louis. The New York Central crew left the train, and the TRRA crew boarded. There was no change of locomotive, caboose, or consist. The TRRA crew operated the train over TRRA tracks to Dupo, Illinois, a distance of about nine miles, for delivery to the Missouri Pacific. As far as waybills and accounting records were concerned, the transaction was treated as an interchange directly between New York Central and Missouri Pacific.
The government claims that the delivery of the train by the New York Central crew to the TRRA crew was an interchange within the meaning of sec. 132.12 and that TRRA was accordingly required to make the initial terminal road train air brake test. TRRA denies that this delivery constituted an "interchange", and contends no test was required. Clearly none would have been required if the New York Central had remained in control of the train and operated it to Dupo.
The Missouri Pacific movement. A train of 123 freight cars, hauled by a Missouri Pacific locomotive, and with a Missouri Pacific caboose attached, arrived, from Little Rock, Arkansas over the Missouri Pacific at the Missouri Pacific yards at Dupo, Illinois. The locomotive and caboose were removed, and a TRRA crew coupled on a TRRA locomotive and caboose. This crew made the type of air brake test required by sec. 132.13(c) (1) "At a point other than initial terminal where locomotive or caboose is changed. * * *" The train proceeded over TRRA tracks a distance of eight miles to a TRRA yard, where the cars were eventually delivered to the B. & O. and Pennsylvania railroads.
The government does not claim that the TRRA received this train in interchange, the alleged difference between this movement and the New York Central movement being the change of locomotive and caboose. It claims that this movement was a transfer train movement, making sec. 132.13(e) (1) applicable, and that since the movement did not exceed 20 miles the initial terminal road train air brake test, pursuant to sec. 132.13(e) (2), was not required, but the test prescribed by sec. 132.13(e) (1) was. One of the differences between the (c) (1) test, actually performed, and the (e) (1) test is that in (c) (1) observation of the application and release of brakes on the rear car would suffice, while in (e) (1) it would be necessary to "walk the train" observing application on each car. The latter observation is one of the requirements of the initial terminal test, required for transfer train movements exceeding 20 miles and for trains received in interchange.
TRRA denies this was a transfer train movement. Had the Missouri Pacific crew remained in control, changed engine and caboose, and operated the train to the TRRA yard, the only test required would have been the one prescribed by sec. 132.13(c) (1), and it is conceded this test was made. TRRA contends it was required to do no more.
As to each movement TRRA appears to take the position that for the purpose of air brake inspection requirements the movement by TRRA is to be treated as if performed by New York Central or Missouri Pacific, respectively. It emphasizes its character as a terminal and interchange facility, operating over short distances and at low speeds, and in many respects having an agency relationship with connecting carriers. The government emphasizes TRRA's legal status as a distinct entity and a common carrier.
TRRA concedes that being a terminal or belt line carrier, or being in an agency status, does not protect it from liability for violation of the safety appliance acts or power brake rules.*fn3 But it does appear to claim that its status should produce a construction of the rules on inspection so that its duty with respect to the train movements in this case would be the same as the originating carriers' duty if they had performed the movements.
We see no reason for this special approach to construction in the case of inspection requirements. Other provisions of the statutes tend to prevent the use of defective equipment, or use in an improper manner, by making the carrier in immediate control liable for penalty for such use. Any one inspection may not disclose a defective item, but compelling inspections before use will tend to disclose and prevent the use of equipment which does not function properly. Treating each carrier which handles a train movement independently, and compelling it to inspect for itself rather than rely on an inspection by a previous carrier is a reasonable means of promoting safety, and appears to be intended by the regulations.
49 C.F.R. sec. 132.12 is entitled "Initial terminal road train air brake tests." Paragraphs (a) to (h) describe the inspection and testing procedures and standards. The opening paragraph provides that this inspection and test must be given "at points: (1) Where a train is originally made up (Initial Terminal); (2) Where train consist is changed other than by adding or removing a solid block of cars and train brake system remains charged; (3) Where train is received in interchange." Sec. 132.13(e) (2) requires the same inspection and test for "transfer train and yard train movements exceeding ...