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CHICAGO & N.W. TRANSP. CO. v. ATCHISON

November 7, 1973

CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, PLAINTIFF AND COUNTER-DEFENDANT,
v.
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, DEFENDANT AND COUNTER-PLAINTIFF.



The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on the plaintiff's motion to dismiss the defendant's counterclaim.

This action is brought under the Interstate Commerce Act, 49 U.S.C. Part 1, Sections 1-26 inclusive, and the jurisdiction of this Court is allegedly based on 28 U.S.C. § 1331 and 1337. The matter in controversy exceeds the sum of ten thousand dollars exclusive of interest and costs.

The defendant, the Atchison, Topeka and Santa Fe Railway Company ("Santa Fe") is a corporation organized under the laws of the State of Delaware with its principal place of business in Chicago, Illinois. Santa Fe is engaged as a common carrier by rail for the carriage of goods in interstate commerce.

The plaintiff, in its complaint, alleges, inter alia, the following facts:

  1. North Western maintains a perishable produce
     terminal within the City of Chicago, known as the
     Wood Street Terminal, at which North Western
     handles perishable produce shipments in switch
     service and not as a line haul carrier, receiving
     no portion of the through freight revenue
     applicable to such shipments.
  2. Pursuant to applicable tariffs lawfully published
     and on file with the Interstate Commerce
     Commission, North Western as a switching carrier
     is required to perform on Santa Fe's behalf
     necessary re-icing services on refrigerator cars
     delivered to it by Santa Fe at Chicago, Illinois
     for switch movement at Wood Street Terminal.
  3. North Western and Santa Fe are parties to National
     Perishable Freight Committee Division Sheet 7,
     which is a valid and binding agreement prescribing
     the basis of division of charges and expenses for
     furnishing refrigeration services to perishable
     shipments in freight cars moving over the lines of
     both North Western and Santa Fe. Pursuant to Item
     30K, paragraphs (A)12 and (A)13 (Rules 224 and
     225) and Item 40A, Exception 1 of said Division
     Sheet 7, North Western is entitled to recover from
     Santa Fe North Western's actual cost of performing
     re-icing services on refrigerators cars delivered
     to North Western from Santa Fe for switch movement
     at Wood Street Terminal.
  4. During the period of June 7, 1965 to and including
     December 31, 1969, Santa Fe delivered 11,289
     refrigerator cars to North Western at Chicago,
     Illinois for switch movement at Wood Street
     Terminal. All of said cars required re-icing by
     North Western on Santa Fe's behalf. By reason of
     services rendered in re-icing said cars, and
     pursuant to said National Perishable Freight
     Committee Division Sheet 7, Santa Fe became
     indebted to North Western in the amount of
     $259,064.54, which represents the actual cost to
     North Western of performing the re-icing services.
     By virtue of tariff charges for said re-icing
     services payable by the shipper or the receiver,
     as the case may be, North Western has been paid
     $150,168.62 leaving a balance due and owing from
     Santa Fe of $108,895.92 which represents the
     difference between said tarriff charges collected
     from shippers or receivers and the actual cost to
     North Western of performing said re-icing
     services. Although requested by North Western to
     pay such $108,895.92, the defendant has neglected
     to pay any part thereof.

On September 4, 1973 Santa Fe filed its answer to North Western's complaint and also a counterclaim to recover certain expenses allegedly incurred by Santa Fe in providing mechanical protective services to mechanical (as opposed to ice) refrigerator cars moving over North Western's lines. The counterclaim is based on several orders of the Interstate Commerce Commission relating to the provisions of mechanical protective services in conjunction with a judgment of United States District Court for the Northern District of California.

Santa Fe, defendant and counter-plaintiff, in its counterclaim, alleges the following facts:

  1. Pursuant to applicable tariffs lawfully published
     and on file with the Interstate Commerce
     Commission, counter-defendant and Santa Fe are
     required to transport perishable produce
     shipments, requiring refrigeration service, in
     interstate commerce. Such perishable produce
     shipments are transported in a large number of
     instances, over lines of either or both
     counter-defendant and Santa Fe, in mechanical
     refrigerator cars owned and furnished by Santa Fe.
     Refrigeration in these cars is provided by a
     mechanical unit which is attached to and located
     in the car. Ice is not needed to maintain a
     refrigerated condition in these cars.
  2. Counter-defendant and Santa Fe are parties to
     National Perishable Freight Committee Division
     Sheet 7, which is an agreement establishing among
     other things, the basis for the division of
     charges and expenses for furnishing mechanical
     protective services, including refrigeration to
     perishable shipments moving over the lines of
     counter-defendant, Santa Fe, and other railroads.
     Under Division Sheet 7, as it is presently
     constituted and was constituted during all periods
     of time pertinent herein, the participating
     railroads pay eighty percent of the mechanical
     protective service charge ...

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