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CHICAGO & N.W. TRANSP. CO. v. SOO LINE RAILROAD CO.

February 5, 1974

CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, A CORPORATION, PLAINTIFF,
v.
SOO LINE RAILROAD COMPANY, A CORPORATION, DEFENDANT.



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

MEMORANDUM ORDER

This matter is before the court on plaintiff's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and defendant's cross-motions pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure, for a dismissal of plaintiff's complaint for failure to state a claim upon which relief can be granted or in the alternative for summary judgment. Jurisdiction is founded on 28 U.S.C. § 1331(a) and 1337. For the reasons hereinafter stated, plaintiff's motion is Granted and defendant's motions are Denied.

Plaintiff Chicago and North Western Transportation Company (hereafter "North Western") seeks to recover $10,756.64 from defendant Soo Line Railroad Company (hereafter "Soo") as the total costs North Western incurred in re-icing 560 refrigerator cars delivered to it by the Soo.

North Western's Wood Street Terminal operates as a receiving and distribution point for carloads of perishable produce moving to Chicago on common carriers by rail. In this capacity North Western operates as a switching carrier. It receives no portion of the through line-haul freight charges collected from the shipper.

Common carriers by rail are obligated by their tariffs to provide protection against heat and cold to shipments of perishables in refrigerator cars. This obligation extends throughout the period when a perishable shipment is under the control of a rail carrier. Consequently, the North Western is obligated to provide protective services to shipments of perishables while they are under its control at the Wood Street Terminal.

In return for providing this protective service, the originating carrier is paid a standard refrigeration service charge by the shipper. The charge is set forth in National Perishable Freight Committee Perishable Protective Tariff 18, I.C.C. No. 37, published and on file with the Interstate Commerce Commission, pursuant to 49 U.S.C. § 6(1) and covers the shipper's obligation to pay for protective services given between the points of origin and final destination.

The rights and obligations of rail carriers between each other with respect to through shipments moving over more than one carrier are covered by division agreements among the carriers. These division agreements include National Perishable Freight Committee Division Sheet 7 (hereafter "Division Sheet 7") and National Perishable Freight Committee Circular 20-F (hereafter "Circular 20-F") to which North Western and Soo are parties. Switching carriers are paid for re-icing services performed on their lines pursuant to Division Sheet 7. Item 124 of Division Sheet 7, applicable to re-icings performed at stations in Illinois, provides that in the case of the immediate re-icings of cars upon delivery, the originating carrier pays the switching carrier from the standard refrigeration rate paid to it by the shipper.

Rule 235 of Circular 20-F and Rules 225(B) and (D) of Perishable Protective Tariff 18 in part provides:

Rule 235 of Circular 20-F, Part 2 —

  "Applicable only for account of the Chicago and
  North Western Railway Company . . . unless
  otherwise provided by tariff, billing, local
  agreement, established practice or special
  instructions, cars under refrigeration should be
  re-iced to capacity before delivery to
  connections, or agent of delivering line should
  arrange for immediate re-icing by connection, if
  any icing facilities are maintained at such
  interchange or receiving line."
  Rules 225(b) and (D) of Perishable Protective
  Tariff 18 —

225(b)

  "After arrival of car in the terminal train yard
  serving destination, and up to time car is in
  process of unloading on team track, or until
  private lock or seal has been applied, or until
  placed on private track, ...

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