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INDIANA HARBOR BELT R. CO. v. GENERAL AMER. TRANSP.

November 7, 1973

INDIANA HARBOR BELT RAILROAD COMPANY, A CORPORATION, PLAINTIFF,
v.
GENERAL AMERICAN TRANSPORTATION COMPANY, A CORPORATION, DEFENDANT. INDIANA HARBOR BELT RAILROAD COMPANY, A CORPORATION, PLAINTIFF, V. NORTH AMERICAN CAR CORPORATION, A CORPORATION, DEFENDANT. INDIANA HARBOR BELT RAILROAD COMPANY, PLAINTIFF, V. UNITED STATES OF AMERICA AND INTERSTATE COMMERCE COMMISSION, DEFENDANTS.



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

MEMORANDUM OPINION

This controversy began with the filing of two suits in this court in March 1970 by Indiana Harbor Belt Railroad Company ("IHB") to collect switching charges outstanding against General American Transportation Company (Indiana Harbor Belt R.R. Co. v. General American Transportation Co., 70 C 491) and against North American Car Corporation (Indiana Harbor Belt R.R. Co. v. North American Car Corp., 70 C 492), for switching empty privately owned tank cars to and from car repair plants owned by the defendants and located on the Indiana Harbor Belt R.R. Co. The car companies not only denied liability, claiming that the tariff charge assessed by the railroad under its tariff was inapplicable, unreasonable, and unlawful, but also filed counterclaims for refund of similar charges assessed and collected by respondent IHB during the same period on empty privately owned freight cars, other than tank cars, switched to and from repair facilities. The two car company defendants then moved to stay the court actions and refer the issues to the Interstate Commerce Commission for determination. Pursuant thereto, the defendants ("petitioners") filed with the Commission a declaratory order in accordance with the provisions of the Administrative Procedure Act, 5 U.S.C. § 554, for consideration of the issues. In July, 1971, a Commission examiner issued a report and recommended order concluding that IHB's charges were applicable to the movement in question, and that the charges were not unjust or unreasonable.

The car companies filed exceptions to this decision to Division 2. In May 1972, Division 2 issued their report, and concluded that the charges collected and sought to be collected were inapplicable to the movements in question. This report entitled Charges on Movements of Privately Owned Cars to and from Repair Shops on the Line of Indiana Harbor Belt Railroad Company, is published at 341 I.C.C. 57.

IHB initiated a third lawsuit, this time against the United States and the Interstate Commerce Commission (73 C 114), to set aside and annul this final Commission determination. Since the ruling in this third lawsuit is dispositive of the issues in the suits against General American Transportation Co. (GATX) and North American Car Corp. (NAC), the three suits are consolidated herein for a ruling on the merits.

Respondent IHB is a belt carrier operating in the Chicago, Ill., switching district. Its switching movements are varied. For example, IHB switches loaded and empty cars between approximately thirty line-haul carriers and industries located on its tracks. It switches loaded and empty cars handled in overhead traffic between line-haul carriers, and empty cars to and from seven repair facilities located on its tracks. Two of such repair shops are owned and operated by General American and one by North American, these two companies numbering among the largest manufacturers and lessors of freight cars, including tank cars.

The standard local switching charge was published in respondent's tariff 325 series. The tariff in effect at the time of filing of the court actions was designated IHB tariff 325-U, I.C.C. No. 1160 (superseded by a subsequent issue of the tariff on January 1, 1971, not here relevant). The charge assessed for this service was $20.21 per car, but no charge was assessed on empty freight cars switched between line-haul carriers and industries preceding or following a loaded movement, or, as previously stated, on empty tank cars switched to and from repair shops. IHB alleges that the omission to charge for this latter service was an oversight; their attempt to retroactively collect this charge over the past 3 years resulted in the lawsuit and counterclaim already described.

The dispute between the parties relates initially to the proper interpretation of Maurer's Mileage Tariff 7 I.C.C. No. H-32 (Mileage Tariff 7). The issues are directed to Items 25, 30, and 120 of Sec. 1 of Mileage Tariff 7, and Items 140, 145, and 260 of Sec. 2 of that tariff. (Throughout the opinion, reference will be made only to Items 25, 30, and 120 dealing with tank cars. The discussion, however, is equally applicable to other freight cars since Items 140 and 145 of Sec. 2 contain language virtually identical to Items 25 and 30. Item 120 of Sec. 1 and Item 260 of Sec. 2 differ only in that Item 120 provides for free moves at the time of movement, subject to equalization of loaded and empty mileage, whereas Item 260 provides for free moves without restriction.)

Item 25 of Mileage Tariff 7 provides in pertinent part:

  Except as otherwise provided herein, these rules
  govern the payment of mileage allowances and
  equalization of mileage on tank cars when used by
  railroads,. . . . for transportation over their
  lines, including the movement to shops for repairs or
  reconditioning or returning therefrom. . . .

With regard to the movements covered by Item 25, Item 120 of the tariff describes the carrier's obligation in the following terms:

  Except as otherwise provided in Items 25 and 30
  (Application and Exception to Application), tank cars
  will be moved empty without charge at the time of
  movement . . . on the line of railroads parties to
  this tariff. . . .

The position of IHB is that Item 30(a) excepts from application of the Mileage Tariff any movement of a private car for which a tariff charge exists. Item 30 provides, as pertinent:

  The rules and mileage allowances published herein
  will not apply on the following: (a) Movement of
  empty cars for which charges are assessed under
  tariff authority.

Therefore, since respondent published a switching charge in its own tariff, IHB No. 325-U, on all empty freight cars, it contends such tariff was applicable to the exclusion of the terms of Item 25. The descriptive item in connection with the switching ...


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