|SURFACE TRANSPORTATION BOARD DECISION DOCUMENT|
|THE SPRINGFIELD TERMINAL RAILWAY COMPANY—PETITION FOR DECLARATORY ORDER—REASONABLENESS OF DEMURRAGE CHARGES|
|DECISION: (1) GRANTED THE PARTIAL MOTION TO DISMISS FILED BY FORE RIVER WAREHOUSING AND STORAGE CO., INC. (FORE RIVER), (2) GRANTED IN PART AND DENIED IN PART FORE RIVER’S MOTION TO COMPEL DISCOVERY; AND (3) SET A NEW PROCEDURAL SCHEDULE.|
| 19 KB|
|Approximate download time at 28.8 kb: 40 Seconds|
If you do not have Acrobat Reader, or if you have problems reading our files with your current version of Acrobat Reader, the latest version of Acrobat Reader is available free at www.adobe.com.
|Full Text of Decision|
40375 SERVICE DATE – JUNE 16, 2010
SURFACE TRANSPORTATION BOARD
Docket No. NOR 42108
THE SPRINGFIELD TERMINAL RAILWAY COMPANY—PETITION FOR DECLARATORY ORDER—REASONABLENESS OF DEMURRAGE CHARGES
Decided: June 11, 2010
This decision (1) grants the partial motion to dismiss filed
by Fore River Warehousing and Storage Co., Inc. (
The Springfield Terminal Railway Company (ST) filed a petition for declaratory order seeking to have the Board resolve a dispute over demurrage charges that ST assessed against Fore River in 2004 (2004 charges) and in 2006 (2006 charges). By decision served on February 10, 2009 (February 10 decision), the Board instituted a declaratory order proceeding, but only for the 2006 charges, as collection of the 2004 charges appeared to be time-barred.
On October 6, 2009,
decision served on October 28, 2009, the procedural schedule in this proceeding
was held in abeyance until the Board could rule on the motion to compel. The Board directed ST to inform the Board of
the status of any collection action it may be pursuing as to the charges at
issue here. It also provided that
its partial motion to dismiss,
October 27, 2009,
DISCUSSION AND CONCLUSIONS
Partial motion to dismiss
to filing its partial motion to dismiss before the Board,
Here, the parties disagree over when the demurrage charges subject to Fore River’s partial motion to dismiss accrued under 49 U.S.C. § 11705(a). Fore River argues that the charges accrued upon constructive placement of railcars, which it argues occurred before ST re-filed its court action, and ST argues that the charges accrued when they were invoiced to Fore River or when those invoices were due to be paid, which ST argues occurred after it re-filed its court action.
neither side cites any precedent in support of its position, the matter is
clear. The statute provides that a “claim [under § 11705(a)] related to a
shipment of property accrues under this section on delivery or
tender of delivery by the rail carrier .” (Emphasis added.) 49 U.S.C.
§ 11705(g). The courts have found that a claim under § 11705(a) for
demurrage accrues upon delivery. See Pennsylvania R.R. v.
Carolina Portland Cement Co., 16 F.2d 760, 762 (4th Cir. 1927),
quoting Davis v. Timmonsville Oil Co., 285 F. 470, 472 (4th Cir. 1922)
(“[d]emurrage charges are part and parcel of the transportation charges, and
are covered by the same rules of law.”); Atchison, Topeka and Santa Fe Ry.
v. Benchcraft, Inc., 381 F. Supp. 603, 604 (W.D. Mo. 1974). The Board has interpreted the date of delivery
(or tender of delivery) as the date the railcars are placed
at the shipper’s facility, either actually or constructively. See Capitol Materials Inc.—Petition for Declaratory
Order—Certain Rates and Practices of
Motion to compel
The motion to compel will be denied in part and granted
in part. With respect to the requested
documents that ST represents it has provided to
ST’s bare assertion is insufficient to demonstrate that the “change in status” records cannot be produced. First, ST fails to support its assertion that the records cannot be produced without IP/Verso’s consent; ST provides no evidence of any non-disclosure or confidentiality agreement that would prohibit ST from producing documents in its possession. Second, ST fails to explain why such records would be commercially sensitive in any event. Moreover, even if the records contain confidential, proprietary, or commercially sensitive information, it is well-settled that a protective order ensures that such information will be used solely for the involved proceeding and not for other purposes. See Pennsylvania Power & Light Company v. Consolidated Rail Corporation, et al., Docket No. NOR 41295 (STB served Mar. 10, 1997). Thus, if ST is concerned that the records contain protectable information, then ST may wish to consult with IP/Verso to determine the level of confidentiality appropriate for production of those records and file a motion for the appropriate protective order before producing those records.
ST argues that it is irrelevant whether IP/Verso directs
ST to ship its product in railcars to
ST will be directed to provide
This action will not significantly affect either the quality of the human environment or the conservation of energy resources.
It is ordered:
1. Fore River’s motion for leave to file a reply to ST’s reply in opposition to the motion to compel is denied.
2. Fore River’s partial motion to dismiss is granted.
3. Fore River’s motion to compel is granted in part and denied in part, as discussed above.
4. ST is directed to file any necessary protective order and provide the requested documents by July 7, 2010.
5. Fore River’s reply statement is due by August 5, 2010.
6. ST’s rebuttal statement is due by August 25, 2010.
7. This decision is effective on its date of service.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and Commissioner Nottingham.
 In March 2007, ST originally filed a
collection action for both the 2004 charges and 2006 charges against
 In the February 10 decision, the Board provided that, if ST obtained an order from the court that the 2004 charges are not time-barred by the 3-year statute of limitations under 49 U.S.C. 11705(a), then the Board would consider ST’s petition concerning the 2004 charges. ST has not submitted any court order addressing the 2004 charges.
 ST states that
 We do not reach the issue of whether equitable tolling should be applied to the charges barred under § 11705(a) as the parties do not address that issue before the Board. We defer to the court as to any tolling determination before the court.
 In its reply