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October 5, 1993

NORFOLK AND WESTERN RAILWAY COMPANY, a Virginia corporation, Plaintiff,
ILLINOIS CENTRAL RAILROAD COMPANY, a Delaware corporation, Defendant, ILLINOIS CENTRAL RAILROAD COMPANY, Third Party Plaintiff, v. SPCSL CORPORATION, Third Party Defendant.

The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 This action arises from a fee dispute between plaintiff Norfolk and Western Railway Company ("Norfolk") and defendant Illinois Central Railroad Company ("IC"). Earlier, we granted IC leave to file a third party complaint against SPCSL Corporation ("SPCSL"). Presently before us is IC's motion for summary judgment against Norfolk and Norfolk's motion to strike. For the following reasons, we grant in part and deny in part defendant's motion for summary judgment and deny plaintiff's motion to strike.

 I. Factual Background

 A. The Joint Engine Agreement

 Not surprisingly, coordination of rail traffic among the various carriers using the lines on Shell's property can become a complicated enterprise. Accordingly, in 1971, three railroads having direct access to Wood River negotiated a Joint Engine Agreement ("Agreement"). The Illinois Terminal Railroad Company ("Terminal") (which became Norfolk), the Gulf, Mobile and Ohio Railroad Company (which became IC), and the Trustees of the Penn-Central Transportation Company (which became Conrail), agreed that Terminal would provide switching services at Shell's Wood River refinery. *fn1" The Agreement provided that "the joint services to be performed by Terminal [Norfolk] hereunder shall be for [Shell's] main plant located south of Terminal's [Norfolk] main line in Wood River, Illinois." Agreement at P 2. By its own terms, the Agreement was assignable and could be terminated by any one party upon ninety days written notice.

 In fact, in 1987, IC sold miles of trackage to the Chicago, Missouri, and Western Railway Company ("CM&W"), including tracks around the Wood River facility. Consequently, IC assigned its interest in the Agreement to CM&W. When CM&W went bankrupt, it sold the trackage and assigned the Agreement to SPCSL.

 After IC assigned its interest in the Agreement, it continued to send cars to Shell's oil refinery. In order to do so, it contracted with CM&W and then SPCSL to "handle" its cars. According to IC, it paid the rail companies a flat rate of $ 100 to carry its empty cars and $ 165 to carry its loaded cars to and from Wood River. IC asserts that the rate covered the switching fees charged by Norfolk under the Agreement. *fn2" Regardless of the terms of the contracts, it is undisputed that CM&W did present IC's cars to Norfolk for switching prior to the building of the acid transfer facility, and that Norfolk did, in fact, switch the cars and bill CM&W. *fn3"

 B. The Acid Transfer Facility

 Sulphuric acid is required in the manufacture of high grade gasoline. Until recently, Shell manufactured, processed and regenerated its own sulphuric acid, purchasing additional supplies as needed. However, Shell desired a steadier, more reliable, supply stream. Thus, in 1988, Shell contracted with Rhone-Poulenc Basic Chemicals Company ("Rhone-Poulenc"), formerly a division of Stauffer Chemical Company, to build an acid transfer facility for Shell and to arrange for a constant supply of sulphuric acid for Shell's use. Rhone-Poulenc was to ship regenerated acid from its regeneration plant in Hammond, Indiana via rail to Wood River. Once the acid arrived, Rhone-Poulenc would use the newly constructed facility to unload the new acid and load the old acid for transport to Hammond for regeneration.

 Rhone-Poulenc built the facility, at Shell's expense, around an existing rail spur (the "coke-spur") on the south property. *fn4" However, in addition to using the coke-spur, Rhone-Poulenc laid some additional tracks branching off from the existing lines. Upon completion of the facility in 1989, Rhone-Poulenc sought bids for the transportation of acid between Wood River and Hammond. Rhone-Poulenc chose among various companies, including Norfolk, and ultimately contracted with IC and the Indiana Harbor Belt Railroad Company to move the acid loads to and from Wood River.

 C. Tariff 8315-E, Supplement 108, Item 6495-A

 On October 20, 1989 -- soon after shipments to the acid facility began -- Norfolk announced a supplement to its Switching Tariff No. 8315-E. Supplement 108 amended Item 6495-A to list Rhone-Poulenc as a separate industry in Wood River (also known as Roxana, Illinois). By identifying Rhone-Poulenc as a separate and new industry, Supplement 108 purported to make traffic to and from the facility subject to Tariff No. 8315-E, rather than the Joint Engine Agreement ...

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