McCrea v. Harris County Houston Ship Channel Nav. Dist.

• Decision Date: 13 April 1970
• Docket Number: No. 27499.,27499.
• Citation: 423 F.2d 605
• Parties: Dorothy B. McCREA, a Widow, Individually, and as Independent Executrix of the Estate of Herbert R. McCrea, Dec'd, and James A. McCrea, a Minor, Plaintiffs-Appellants, v. HARRIS COUNTY HOUSTON SHIP CHANNEL NAVIGATION DISTRICT and Pacific Employers Insurance Co., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

423 F.2d 605 (1970)

Dorothy B. McCREA, a Widow, Individually, and as Independent Executrix of the Estate of Herbert R. McCrea, Dec'd, and James A. McCrea, a Minor, Plaintiffs-Appellants, v. HARRIS COUNTY HOUSTON SHIP CHANNEL NAVIGATION DISTRICT and Pacific Employers Insurance Co., Defendants-Appellees.

No. 27499.

United States Court of Appeals, Fifth Circuit.

February 17, 1970.

Rehearing Denied and Rehearing Denied April 13, 1970.

Warner F. Brock, Brock & Williams, Houston, Tex., for appellants.

Finis E. Cowan, Houston, Tex., for appellees; Baker, Botts, Shepherd & Coates, Houston, Tex., of counsel.

Before GEWIN, THORNBERRY and AINSWORTH, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied April 13, 1970.

GEWIN, Circuit Judge:

On August 18, 1964, Herbert R. McCrea, an employee of Harris County Houston Ship Channel Navigation District (Navigation District), was killed when he fell into a concrete-lined pit, housing an hydraulic dumping mechanism used by the Navigation District in unloading grain from railroad cars. Mrs. Dorothy McCrea,¹ his widow, filed suit in the United States District Court for the Southern District of Texas seeking damages from the Navigation District under the Federal Employers' Liability Act² Alternatively, Mrs. McCrea sought to recover the maximum compensation benefits allowed by Texas law from Pacific Employers Insurance Company, the Navigation District's compensation carrier.³

The principal question presented to the district court was whether the Navigation District which owns no locomotives⁴ or cars, employs no typical railroad employees, operates no scheduled trains, and makes no direct charge for movement by rail is a "common carrier by railroad" as defined by FELA.⁵ The ambiguous nature of the Navigation District's operations permits a substantial argument that it is a strange but statutory "railroad." The case was tried without a jury, and the court concluded that while the Navigation District was engaged in interstate commerce, it was not a "common carrier by railroad" and dismissed the FELA claim. Pursuant to an agreement by the parties,⁶ judgment was entered against Pacific Employers for the maximum compensation and funeral benefits allowed by state law. We affirm the district court's dismissal of the FELA claim.

On appeal Mrs. McCrea contends that the district court erred in: (1) dismissing appellant's claim under FELA. (2) Refusing to comply with appellant's request that it make separate findings of fact and conclusions of law. (3) Failing to include interest on the past due compensation installments in its judgment. (4) Failing to provide that the award would bear interest from the date of the entry of judgment.

I

The Navigation District is a creature of state law⁷ and a political subdivision of the State of Texas operating terminal facilities at the Port of Houston. The direct link between the Navigation District and various rail carriers is a belt railroad operated by the Port Terminal Railroad Association (PTRA). An understanding of PTRA's organization and operation is necessary to a proper evaluation of the Navigation District's activities.

PTRA, an unincorporated association, was created in 1924 by an agreement between the Navigation District and six railroads which served the Port of Houston. It was formed to provide interchange rail facilities and switching services to the railroads on an impartial basis. Management of PTRA is formally vested in a Board of Control, consisting of five representatives from the Navigation District and one representative each from the eight railroads currently participating in the association. However, on all matters relative to the operation of PTRA, each of the eight railroads may cast one vote while the Navigation District has only two votes. The Board of Control meets less than annually, and the day-to-day operation of the PTRA is controlled by an executive committee composed of representatives of the participating railroads.

PTRA owns property with an approximate value of $100,000. It leases property from the Navigation District including rights-of-way, trackage, switches, yards, and office buildings with a value between $10,500,000 and $11,000,000. PTRA pays the Navigation District 5% of the agreed value of the leased property annually as rent. The rolling stock and locomotives used by PTRA are furnished by the member lines, and it has the use of trackage in addition to that leased from the Navigation District under agreements with individual lines. The expenses of operating PTRA are borne by the member railroads on a pro-rata basis. PTRA makes no charge for movement of the cars of a member line, but does have a published tariff for moving cars for industries located in the area of its operation. PTRA is admittedly a common carrier by railroad and subject to FELA, as well as other federal rail carrier legislation.⁸ On the other hand, it is not contested that the Navigation District and PTRA are distinct legal entities.

In its own operation, the Navigation District maintains certain railroad trackage at two facilities, a bulk materials handling plant and a public grain elevator.⁹ The primary functions of these facilities is the unloading of incoming cargo, temporary storage, and conveyance of the cargo to vessels for loading. Any movement of railroad cars necessary to this unloading procedure is effected by employees of the Navigation District. PTRA equipment and employees do not operate on the property of the Navigation District.

Much of the testimony at the trial focused on the operations at the public grain elevator where the fatal accident occurred. At this facility, cars loaded with ship-bound grain are delivered by PTRA to a siding approximately 300 feet from the elevator. From the siding, the cars are moved on to dumpers by Navigation District employees using either electrically operated winches and cables or pneumatic tired tractors as a motive force. The grain is unloaded by the dumping mechanisms and the empty cars are rolled down an incline approximately 100 feet to a holding area. There the brakes on the cars are set and they are picked up later by employees of PTRA. The grain is moved to wharfside by means of a conveyor.¹⁰

A "common carrier by railroad", as used in FELA, "* * * means one who operates a railroad as a means of carrying for the public — that is to say, a railroad company acting as a common carrier. This view * * * is in accord with the ordinary acceptation of the words. * * *"¹¹ This general standard was illuminated by this court in Lone Star Steel Company v. McGee.¹²

In determining that Lone Star was a common carrier by railroad and within the ambit of FELA, the court reviewed authority relevant to the present question and determined several considerations to be of prime importance:

First — whether there is actual performance of rail service, second — whether the service being performed is part of the total rail service contracted for by a member of the public, third — whether the entity is performing as part of a system of interstate rail transportation by virtue of common ownership between itself and a railroad or by a contractual relationship with a railroad, and hence such entity is deemed to be holding itself out to the public, and fourth — whether remuneration for the service performed is received in some manner, such as a fixed charge from a railroad or by a percent of the profits from a railroad.¹³

In Lone Star, the steel company admitted that it performed rail services and the case turned on the last three consideration set out above. In the instant case, whether or not the Navigation District's activities constitute rail services is of central importance. In answering this question in the negative, the district court analogized the situation to three cases in which the courts have held that the intraplant movement of goods by rail did not make the industries involved rail carriers under FELA.¹⁴ More importantly, the court noted that the unloading of inanimate cargo is not ordinarily a railroad function.¹⁵ Thus, the court reasoned that the movement of rail cars over a few hundred feet of track, incident to the unloading process at the Navigation District's facilities, is not a rail service. While the Navigation District may be a common carrier of a type, and engaged in interstate commerce, its carriage services are performed by conveyor and not by rail.

While this determination forecloses appellant's claim that the Navigation District is a rail carrier under FELA, consideration of the remaining Lone Star criteria reinforces the result reached by the district court. The services performed by the Navigation District are not a part of the total rail service contracted for by the public. The Kansas grain shipper, who appeared hypothetically throughout this case, does not receive the services of the Navigation District by virtue of his shipment contract with a railroad. The regular line-haul rate entitles the shipper only to transportation to the appropriate siding track. Independent arrangements must be made with the Navigation District and an additional charge paid in order to have the cars moved to the dumping mechanism and unloaded.

Appellant would have us attach considerable significance to the Navigation District's participation in PTRA. Initially it should be noted that the relationship between the Navigation District and PTRA does not approximate the control situation found in Lone Star.¹⁶ PTRA is in fact controlled by its eight member railroads, and if characterization is necessary, PTRA is their alter ego. Further, the relationship between the Navigation District and PTRA is only relevant in determining whether the Navigation District holds itself out as a common carrier and cannot vicariously satisfy the requirement of actual performance of rail service which we have otherwise determined to be lacking.

The Navigation District makes no direct charge for...